are charter schools a good fit for germany?

Transcription

Nr. 67/2003
Are Charter Schools a Good Fit for Germany?
– An Institutional Economic Contribution to Recent
Discussions on Comparative School Reform
in Germany and the US –
Timothy A. Brooks
DISKUSSIONSSCHRIFTEN
AUS DEM
INSTITUT FÜR FINANZWISSENSCHAFT
Von-Melle-Park 5, D-20146 Hamburg
CONTENTS
Page
ABSTRACT
3
I.
INTRODUCTION
3
II.
CHARTER SCHOOLS: WHAT THEY ARE AND HOW THEY WORK
6
III.
CHARTER SCHOOLS FROM AN INSTITUTIONAL ECONOMIC PERSPECTIVE
9
IV.
THE DIRECTION OF CURRENT GERMAN SCHOOL REFORMS
18
A. The Dreigliedriges Schulsystem
18
B. School Administration
19
(1) Private Schools
22
(2) Reform Efforts
24
V.
(a) Selbstständige Schule
24
(b) Club of Rome Schools
26
(c) Future Directions
28
CONCLUSION
33
REFERENCES
35
DISKUSSIONSSCHRIFTEN AUS DEM IFW (LIST OF PREVIOUS TITLES)
44
–2–
ARE CHARTER SCHOOLS A GOOD FIT FOR GERMANY?
– AN INSTITUTIONAL ECONOMIC CONTRIBUTION TO RECENT
DISCUSSIONS ON COMPARATIVE SCHOOL REFORM
IN GERMANY AND THE US –
Timothy A. Brooks∗
Abstract
School decentralization programs are being pursued in Germany and the United States,
but with radically different emphases. This paper examines how the relevant institutional
structures of the two countries shape these programs and speculates how features of each
system might be imported into the other. Specifically, this paper considers the importation of charter schools from the United States, which is characterized by a high level of
governmental and financial diffusion and competition at the local level, into Germany’s
more cooperative, centrally-financed system. It concludes that because of specific features of Germany’s school system that charter schools could be implemented in Germany
without undue changes, and might work better in the German system than would a variety
of other market-based devices.
I.
INTRODUCTION
Are charter schools a good fit for Germany? Charter schools, to oversimplify somewhat,
are government-funded schools that are nevertheless free from a great deal of government regulation. The concept, which originated in the early 1990s, assumes a middle ground between the traditional American pillars of primary and secondary education – the free public school and the feebased private school. Charter schools receive a charter from a public “authorizer,” must be open
to all students without tuition, and are publicly funded, but are free from a great part of the regulations typically applied to public schools. Over the past decade, charter schools have become increasingly popular, with almost 40 of the 50 states having adopted charter school laws.
One should be cautious in importing programs from one country into another, however,
since they can have radically different results because of the institutional context in which they are
pursued. As the American economic historian and Noble Laureate Douglass North has noted, in
describing the concept of path dependence, “history matters,” – in other words, different institutional and societal contexts can lead to the same program having widely different results in two
countries.1 A careful review of institutions involved in German primary and secondary education
reveals a much different picture than that found in the United States. Such importing of ideas
would seem to be uncertain at best. However, despite this initial caution, there is a case to be
made that these differences operate in such a way as to be either of limited harm, or even of benefit, to the structuring of a school decentralization program such as charter schools.2
∗
1
2
This research was made possible by a grant from the Alexander von Humboldt Foundation, which allowed the
author to be a guest researcher at the University of Hamburg’s Institute of Public Finance during the 2001-2002
academic year. I would like to thank the Foundation for this financial support and my coworkers at the Institute
for their support and valuable comments on prior drafts of this paper, but any errors are solely my own.
Douglass C. North (1990), Institutions, Institutional Change and Economic Performance, Cambridge: Cambridge
University Press, at 100.
Even if the programs themselves are not transferable, study of other systems can play an important role in understanding the workings of a domestic system. See Eric Hanushek (2002), “Publicly Provided Education,” National
Bureau of Economic Research Working Paper #8799, at 43; Ludger Wößmann (2000), “Schooling Resources,
Educational Institutions, and Student Performance: The International Evidence,” Kiel Institute of World Economics Working Paper No. 983.
–3–
Why even consider importing an American concept into the German system, if Germans
are so skeptical about “market” solutions? For one, there is a general consensus within Germany
that something needs to be done to improve German schools. On December 4, 2001, the Organization for Economic Cooperation and Development (OECD) issued its much-awaited first results
of the PISA 2000 (Programme for International Student Assessment) Study.3 Germany’s performance in this study stunned the nation and created almost a crisis mentality.4 This attitude has
been exacerbated by the release of the German companion study PISA-E in June 2002.5 Results
of PISA-E show significant differences between German Länder (states),6 leading to claims by
some states that their programs are therefore superior, and to counter claims that solutions are actually better found at the federal level.7 Calls for reform have come from all corners, and every
educational interest group seemed to be using PISA to support its particular reform agenda.8 For
example Der Spiegel proposed seven theses of what needs to be done to fix the German education.
Of these, four relate primarily to classroom changes or changes in the number of hours or years in
school, whereas three would require changes to institutions -- independence for universities, relaxation of the German tracking system, and decentralization of decision-making by schools.9 A
recent report by Forum Bildung, the educational arm of the Bund-Länder Kommission, a coordinating body for state-federal relations, included increased accountability and responsibility at the
school level as one of twelve recommended educational reforms.10 In addition, for several years
now, new ideas about school financing are being proposed and considered and greater independence for individual schools has been a central feature of the reform programs of the Bertelsmann
Foundation.11
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5
6
7
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9
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11
Knowledge and Skills for Life: The First Results of PISA 2000, Paris: Organization for Economic Cooperation
and Development, 2001. Clearly some had identified problems within the system well before PISA. One particularly harsh critique of the system comes from Hartmut von Hentig in his 1993 book Die Schule neu denken (München: Hanser), at 10: “(Schule) frißt nicht die Kinder, wohl aber die Kindheit und Jugend. Sie entläßt die jungen
Menschen kenntnisreich, aber erfahrungsarm, erwartungsvoll, aber orientierungslos, ungebunden, aber auch unselbständig – und einen erschreckend hohen Anteil unter ihnen ohne jede Beziehung zum Gemeinwesen, entfremdet und feindlich bis zur Barbarei.” See also Peter Daschner (1995) “Verführung von oben oder Bedürfnis von
unten,” in Peter Daschner, Hans-Günter Rolff & Tom Stryck, eds., Schulautonomie – Chancen und Grenzen: Impulse für die Schulentwicklung, Weinheim: Juventa Verlag, at 173.
See, e.g., “Deutsche Schulen versagen – Alles auf dem Prüfstand,” Hamburger Abendblatt, December 5, 2001;
“Armutszeugnis für unsere Schulen,” Hamburger Abendblatt, December 5, 2001; “Sind deutsche Schüler doof?”
Der Spiegel, No. 50, December 10, 2001; Gunther Hörbst, “Die Kinderkrankheit der Schulen,” Hamburger Abendblatt, December 14, 2001.
See PISA 2000 – Die Länder der Bundesrepublik Deutschland im Vergleich: Zusammenfassung zentraler Befunde
(2002), Berlin: Max-Planck-Institut für Bildungsforschung (Baumert, Artelt, Klieme, Neubrand, Prenzel, Schiefele, Schneider, Schümer, Stanat, Tillmann & Weiß, eds.) (“PISA 2000 – Die Länder im Vergleich”).
Id. See also “Bremens Schüler Schlusslicht,” Hamburger Abendblatt, June 24, 2002; “Nur Bayern liegt über dem
OECD-Durchschnitt,” Frankfurter Allgemeine Zeitung, June 24, 2002; “Gute Noten, schlechte Noten,” Focus, June 24, 2002.
See Heike Schmoll, “Den unionsgeführten Ländern gelingt es,” Frankfurter Allgemeine Zeitung, June 24, 2002;
“Bulmahn wirft Ländern ‘Kirchturmpolitik’ vor,” Hamburger Abendblatt, June 28, 2002.
See, for example, “Pfusch am Kind,” Der Spiegel, No. 20, May 13, 2002, at 96-123; “Mehr Deutsch und Mathe
für Fünftklässler,” Hamburger Abendblatt, January 23, 2002; Hörbst (2001).
“Pfusch am Kind,” at 96-123. The theses include: (1) greater integration of non-native German speakers, (2)
greater availability of kindergarten, (3) better discipline, (4) full-day school, (5) greater integration of the different
tracks currently found in German schools, (6) changing the overall culture of education in Germany, including
greater decentralization of decisions, and (7) greater autonomy and competition for universities.
Forum Bildung (2002), Empfehlungen und Einzelergebnisse des Forum Bildung (Ergebnisse des Forum Bildung
II), Bonn: Forum Bildung & Bund-Länder Kommission, at 13, 48-51.
“Konsequenzen aus PISA: Positionen der Bertelsmann Stiftung,” Gütersloh: Bertelsmann Stiftung, July 23, 2002;
Johannes Bastian & Hans-Günter Rolff (2001), Vorabevaluation des Projektes „Schule & Co.“ Gütersloh: Bertelsmann Stiftung.
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Other proposals for reform attempt to create education markets, and consideration of
voucher programs is gaining strength in Germany, from all sides of the political spectrum.12
However, vouchers focus on providing parents with control over demand for schools, but say
nothing about how the supply of schools will be influenced.13 Failure to focus on the supply-side
of education reform can lead to a lack of differentiation of school services, meaning a lack of
meaningful choice for parents. In such cases freeing parents to select schools may lead to choices
being made for reasons having nothing to do with educational quality, such as convenience to a
parent’s workplace, as seen recently in Hamburg.14 This problem could be all the more acute in
Germany since the supply of schools is so strictly controlled by the state, particularly at the elementary school level. As will be discussed later in this paper, the language of Basic Law Article
7(5) and the general structure of the school oversight (Schulaufsicht) function within the state
education ministries mean that even supposedly independent private schools are in effect “chartered” by state education authorities. Therefore, if German school reformers are to look to the
United States,15 a controlled-choice system centered around charter schools may provide a solution more in keeping with German sensibilities than a more blatant Anglo-Saxon free market approach like vouchers, or may be combined with a voucher program to construct a school reform
structure that does not require drastic modification of the current Schulaufsicht function.16
As the German federal government (der Bund) increasingly casts the response to the PISA
study as a failure of the states, there has been a strong push in the direction of standards, particularly at a national level.17 This tension between decentralization, represented by such programs as
charter schools, school based-management, and other programs, and centralization, represented by
state or national standards, testing and financial equalization, is a common thread in education
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See, for example, 1. Empfehlung der Bildungskommission der Heinrich-Böll-Stiftung, December 9, 2001: “Sie
muss in einer Verbindung von strukturellen mit inneren Reformen bestehen, die dezentralen Ebenen stärken und
insbesondere die Akteure vor Ort im Bildungssystem in die Lage versetzen, eigenständige Reformanstrengungen
zu unternehmen.” (proposes both efforts to decentralize school financing, as well as the establishment of educational savings accounts); Vision für eine neue Finanzierung und Organisation des Schulsystems, International
Workshop sponsored by the Bildungsrat of the Ministerpräsident of Niedersachsen, Wolfsburg, February 6 & 7,
2002. See also Thomas Straubhaar (1996) Die staatliche Bildungskatastrophe, Bonn: Liberales Institut, at 29.
In addition to discussing vouchers, Straubhaar (1996) separately advocates lowering barriers to entry for potential
school sponsors (at 47) as well as contracting out or out-sourcing of some of the supply of education services (at
52).
Although statistical information is not yet publicly available, anecdotal evidence indicates that a good number of
parents shifted their children to new schools (perhaps in many cases closer to their place of work), because a number of primary schools were oversubscribed and turned away students in their traditional catchment areas. See
“Protest gegen Grundschultourismus,“ Hamburger Abendblatt, May 6, 2002.
The United States is certainly not the only potential source for information about quasi-markets for education. For
example, the United Kingdom and the Netherlands also present structures that may be of interest to German
school reformers. Discussion of the details and merits of these systems, however, is beyond the scope of this paper, but readers are directed to Charles L. Glenn (1994b), “Common Standards and Educational Diversity,” in Jan
De Groof, ed., Subsidiarity and Education: Aspects of Comparative Educational Law, Leuven, Belgium: Acco, for
an overview of these reforms. A recent study of Swedish school choice programs is also instructive. See Fredrik
Bergström & F. Mikael Sandström (2002), School Choice Works! The Case of Sweden, Indianapolis: Milton &
Rose D. Friedman Foundation (available online at www.friedmanfoundation.org ).
See for example Ewald Nowotny (1999) Der öffentliche Sektor, Berlin: Springer, at 133; Straubhaar (1996) at 41;
Manfred Weiß (1993) “Der Markt als Steuerungssystem im Schulwesen,“ Zeitschrift für Pädagogik 39(1):71-84.
Arthur Gunlicks has noted that the nontransferability of market competition and “public choice” approaches may
be largely attributable to the centralization of government financing in Germany. Arthur Gunlicks (1987), Local
Government in the German Federal System, Durham: Duke University Press, at 128.
“Bulmahn wirft Ländern ‘Kirchturmpolitik’ vor”; see also Gerhard Schröder, “Ein Gesetz für alle Schulen,” Die
Zeit, June 27, 2002, at 33; Edelgard Bulmahn, “Die Nationale Antwort auf PISA,” Press Release of the Bundesministerium für Bildung und Forschung, June 25, 2002; Edelgard Bulmahn, “Regierungserklärung zur Bildungsund Forschungspolitik,” Speech to the Bundestag, June 13, 2002; Gerhard Schröder, “Regierungserklärung von
Bundeskanzler Schröder zum Thema Bildung und Innovation,” Speech to the Bundestag, June 13, 2002.
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policy debates.18 It is likely to remain a very important part of the developing German debate as
well. As previously stated, this paper will focus on decentralization efforts, in particular the
American concept of charter schools and several German programs that have similar characteristics. However, this does not lessen the importance of the portion of the debate focusing on standards and other centralizing tendencies. Indeed, charter schools and other mechanisms for decentralizing decisional authority can be particularly effective ways to implement centralized standards
efforts.19
Charter schools were introduced into the education debate in Germany at least as early as
the mid-1990s. Charles Glenn suggested that Europeans consider the concept at a European conference on subsidiarity in education in 1993,20 and in 1995, Rüdeger Baron analyzed the concept
in Pädagogik.21 However, the concept has not achieved much currency among educational reformers in Germany.22 This paper seeks to identify trends in German school decentralization efforts (Schulautonomie) that appear to be headed in a direction akin to that taken by charter
schools, and to present an argument of how the concept might be transplanted into the German
context notwithstanding the very different institutional structures found in Germany as opposed to
the United States. Indeed, there are some aspects of German institutional structures that might
make charter schools even more appropriate and successful in the German context than in the
American one. At a minimum, I believe that charter school experiences in the United States could
present German school reformers with important examples of how particular programs might operate in Germany.
II.
CHARTER SCHOOLS: WHAT THEY ARE AND HOW THEY WORK
In the United States, the traditional theory of school competition was based on “voting
with feet,” a theory outlined by Charles Tiebout in 1956, and further developed by a wide range of
scholars since.23 Tiebout applied this theory to describe the structure of American local government, which is characterized by a large number of independent units of local government with
their own powers of taxation. Schools in the United States are generally independent (meaning
the school government of each town is largely free to determine curriculum, negotiate salaries,
and make other decisions), and historically had a good deal of discretion in setting their own tax
rates.24 This means that neighboring towns could have significantly different tax rates or school
quality. Tiebout hypothesized that citizens will react to these differences by choosing a jurisdiction that most closely reflects their desired level of school spending and service. A number of
scholars have argued that “voting with feet,” works quite well in areas that have a large number of
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24
For example, despite decentralizing tendencies present in American education policy, there is also a strong trend
toward centralized standards, through state-level curriculum standards and testing, and at the federal level with the
recently enacted No Child Left Behind Act, which imposes many new mandates on states and schools.
Paul T. Hill & Robin J. Lake (2002), Charter Schools and Accountability in Public Education, Washington, DC:
Brookings Institution, at 109.
Charles L. Glenn (1994a) “Reflections on the Distinctiveness of Schools,” in De Groof, 323-334, at 330.
Rüdeger Baron (1995), “Eine Schule Nach Eigenem Geschmack,” Pädagogik 5/1995:29-33.
Author’s interview with Axel Beyer, Project Director, Club of Rome Schule Project, July 18, 2002; e-mail to Author from Katrin Weisker, Referentin, Selbstständige Schule Düsseldorf, Bertelsmann Stiftung, August 27, 2002.
The literature on “voting with feet” is not central to the arguments presented in this paper, but readers interested in
the concept are referred to Charles Tiebout, (1956), “A Pure Theory of Local Expenditures,“ Journal of Political
Economy 64(5):416-24; Wallace Oates (1969), “The Effects of Property Taxes and Local Public Spending on
Property Values: An Empirical Study of Tax Capitalization and the Tiebout Hypothesis,” Journal of Political
Economy 77:957-71; Bruce Hamilton (1976), “Capitalization of Intrajurisdictional Differences in Local Tax
Prices,” American Economic Review, 66:743-53.
Recent school standards initiatives and efforts to provide for financial equalization of school tax burdens have
changed this landscape somewhat, but the historical model of American schools is one where the major decisions,
both operationally and financially, were made at the local, rather than state, level.
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school districts within a geographic area, because homeowners are able to choose a jurisdiction
that offers a certain quality of education for a specific tax price, which is capitalized into the value
of homes within that jurisdiction.25 Charter schools are taking root in locations where there is not
significant territorial competition between school systems – in other words, this occurs where taxpayers are not willing or able to “vote with their feet.” These areas are often urban areas marked
by a large, centralized school system26 – a situation quite analogous to the general structure of the
school system in much of Germany.
The idea of charter schools is to offer publicly funded alternatives to the traditional public
schools. Charter schools were begun in 1991 in Minnesota. Since then nearly every state has
adopted a charter schools law, and in some states, for example Arizona,27 a significant proportion
of students attend charter schools. Charter schools receive a “charter” from an authorizing agency
that acts as a contract for holding the school accountable for some measure of performance. The
authorizers can be school districts, state agencies or universities, and sponsors of charter schools
can be groups of parents and teachers or nonprofit organizations. Schools can be newly established, or can be converted from existing public or private schools. Charter schools generally
have greater freedom over how the school is run, but must attract both students and teachers willing to be part of the charter school.28 Rather than being assigned to a particular school, parents
choose a charter school for their children, and this decision is usually only limited by the capacity
of the school. If a charter school is over-subscribed, selection of students is usually made by lottery. Although the students come to the school by choice, the funding for the school follows the
students automatically, so these schools do not need to (and indeed are not allowed to) charge tuition. This funding mechanism is critical to allowing the charter school system to work, because it
provides for state funding, but conditions such funding upon the ability of the school to attract
students.
The reasons behind the charter school movement vary from state to state, but have been
classified into four broad categories: (1) to spur educational innovation, (2) to free schools from
bureaucratic rules, (3) to open up education to new providers, and (4) to create a market system
for education.29 Thus charter schools enjoy a somewhat uncertain status somewhere between public and private schools.30
As a particular example of a charter school structure, I would like to focus on the new
charter school law in Indiana as applied to the city of Indianapolis, because it represents a significant evolution of the concept of “competitive government”. In 2001, at the urging of Indianapolis’s new mayor, Bart Peterson, the Indiana legislature enacted a “charter schools” program, and
allowed the mayor to grant charters to schools.31 This was the first charter law to allow a mayor
to grant charters, and represents a significantly different mayoral approach to education than that
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30
31
See Caroline Hoxby (1999) “The Productivity of Schools and Other Local Public Goods Producers,” National
Bureau of Economic Research Working Paper 6911, at 26-28 (argues that the implicit controls imposed by Tiebout competition in a property tax capitalized environment are at least as effective as the actions of a central social
planner acting with nearly perfect information); William A. Fischel (2001), The Homevoter Hypothesis: How
Home Values Influence Local Government Taxation, School Finance and Land-use Policies, Cambridge, MA:
Harvard University Press, at 129-136 (argues that capitalization stimulates interest of homeowners in quality of
education and other local services); Hanushek (2002) at 21.
Having a large number of school systems does not necessarily mean that individual American schools possess a
high degree of autonomy. See Glenn (1994b) at 339-41.
Hill & Lake (2002) at 55-56.
Id. 4-5.
Id. at 17-19.
Gary Miron & Christopher Nelson (2002) What’s Public About Charter Schools? Lessons Learned About Choice
and Accountability, Thousand Oaks, CA: Corwin Press, at 12-16.
See Public Law 2001-100, codified at Indiana Code 20-5.5 (2002).
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taken by many other big city mayors, who instead have sought to take over the entire school system.32 Since American schools are usually governed by boards that are independent from the civil
administration of the city or town, mayors and other civil government officials have frequently be
frustrated by their inability to influence education policy in their communities. A common approach by mayors has been to seek legislation transferring control of a city’s schools to the mayor,
either through control of the appointments of the schools governing board, or by integrating the
school administration more directly into the city administration. The Indianapolis approach is innovative because it did not seek to obtain control of the entire school administration and bureaucracy, and thus implement reform in a top-down manner, but rather to have the freedom to introduce reforms on a school-by-school basis, allowing a bottom up approach. In Indianapolis there is
true competition between the new schools established by the mayor and the school district, which
is still completely independent of the Mayor and the City’s civil administration.
Like most charter programs, students from within the Indianapolis area may attend a charter school if they are selected through a random lottery. Thus the availability of a particular charter school to a student is in no way based upon financial resources (they may not charge tuition) or
on academic ability.33 The charter school, however, acts in much the same way as private schools
are hypothesized to operate – if it provides a higher quality educational product, it will improve
overall quality both on an average basis, but also by increasing the pressure on other public
schools to perform, thus increasing their quality as well. In this way significant increases in quality can be achieved without a large proportion of students being enrolled in charter schools.34 Importantly for purposes of this paper, state funding follows the student to the charter school.35
Therefore the system couples a significant financial incentive to the free choice of schools by the
student. Although this could put existing school districts in a more favorable financial position, if
the marginal cost per student exceeded the marginal reimbursement rate, more often the relationship is reversed and the loss of per pupil revenue is of concern to the traditional school district, as
evidenced by the significant criticism from traditional educational interests.36
The charter is granted by the mayor of Indianapolis, and the school funded through state
education funds. However, the schools are operated by nonprofit sponsor organizations overseen
by charter school boards. The requirement of nonprofit boards is a fairly standard feature for charter schools, but many of these boards employ (often for-profit) education management organizations (EMOs) to operate the schools. In Indianapolis, one of the schools chartered by the Mayor is
32
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34
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36
For example, the recent efforts of Mayor Bloomberg in New York, “Hitting the board,” The Economist, June 15,
2002, at 51, or earlier efforts by the mayors of Boston and Chicago. Such efforts were also made unsuccessfully
in Indianapolis by Indianapolis’s previous mayor. Stephen Goldsmith had been an advocate of school choice since
the early 1990’s, but also pursued a whole host of educational reforms, including an accountability law that actually significantly increased the burden of reporting and limited the freedom of Indianapolis Public Schools. Robert G. Lehnen (2001) “Ideology Versus Patronage Politics: Why Indiana School Reforms Fail,“ in Ingrid Ritchie
& Sheila Suess Kennedy, eds., To Market, To Market: Reinventing Indianapolis, Lahnam, MD: University Press
of America, at 243-44; See also Stephen Goldsmith (1999), Twenty-First Century City: Resurrecting Urban
America, Lanham, MD: Rowman & Littlefield Publishers, Inc., at 119-25.
Indiana Code 20-5.5-5 (2002). Transportation costs can be a financial issue, but many charter schools elect to provide transportation in order to compete effectively with public schools, which almost always provide free transportation for their students.
Hanushek (2002) at 76 (also noting that even largest charter programs only account for 2 to 3 percent of state enrollment); Caroline Hoxby (2002) “School Choice and School Productivity: (or Could School Choice be a Tide
that Lifts All Boats?)“ in Caroline Hoxby, ed., Economic Analysis of School Choice, Washington: NBER Publications (forthcoming); Caroline Hoxby (1994a) “Do Private Schools Provide Competition for Public Schools?” National Bureau of Economic Research Working Paper No. 4978.
Indiana Code 20-5.5-7-3 (2002).
“32 districts call for charter delay,“ Indianapolis Star, November 30, 2001.
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relying heavily upon an EMO, and another to a limited extent.37 In some states, particularly
Michigan, the role of EMOs has been strongly criticized,38 so this is an important factor to watch
as the Indianapolis program develops. The mayor has authority to grant up to five charters per
year, and granted four, although only three have opened for the 2002-2003 school year.39 Although the Mayor’s office anticipates granting further charters at least as long as parent demand
remains high, the program is not intended to bring any significant share of the city’s enrollment
under the control of the Mayor, but rather to serve as an example of innovative educational practices, and serve as a “safety valve” for disaffected parents.40 Accountability of the charter schools
is maintained by the continuing authority of the Mayor to withdraw the charter at any time for
cause or to decline to renew the charter at the conclusion of its 7-year term,41 and in day-to-day
operations by asking each charter school to adhere to an “accountability handbook” provided by
the Mayor and individually developed “accountability plans” that together provide the accountability expected from public schools, but allow the charter schools to operate independently.42
Outside accountability and charter school experts were also brought in to review the operating
plans and facilities of the schools before schooling commenced.43
III.
CHARTER SCHOOLS FROM AN INSTITUTIONAL ECONOMIC PERSPECTIVE
As previously discussed, because of varying institutional structures it is risky to adopt
policies from one country and import them wholesale into another. Therefore, before discussing
how charter schools might be adapted to the German situation, it is useful to provide a basic parsing of the concepts of institutional economics applying to school policy, and a brief discussion of
how charter schools are aimed at addressing problems within this system. After discussing these
issues, this paper will outline how the German education system is structured before applying the
general principles to the specific fact situation found in the German school system.
A.
Education as a Mixed Public Good
Appreciating why policymakers decentralize authority requires understanding some of the
unique aspects of education as a public good (or as a good presenting public good problems) and
the difficulties inherent in the education production function. Education has aspects of both a private good and a public good. Since the benefits redound mostly to the student, through greater
human capital and thus higher future earnings, it is to a large extent private in nature. Certainly
the community as a whole, including less well-educated citizens, also benefits from some members of society being better educated – as the overall level of technology and thus goods and services available rises.44 Control of education traditionally has been public in nature, leading to the
conception of education as a public good at least in the political sense if not in purely economic
terms.45 Regardless of its exact economic character, education presents public good problems.
Hanushek identifies four main reasons for government involvement in education: “externalities,
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45
“School Profiles,” Charter Schools in Indianapolis website, www.indygov.org/mayor/charter/approved/index.htm.
Miron & Nelson (2002) at 196-201.
“City ready to open three charter schools tomorrow, next week,” Press Release, Mayor’s Office, City of Indianapolis, August 28, 2002.
Author’s Interview with David Harris, Director, Mayor’s Office of Charter Schools, City of Indianapolis, September 25, 2002.
Model Charter School Agreement of the City of Indianapolis, Section 16.
“City ready to open three charter schools tomorrow, next week,” August 28, 2002.
Id.
See Hanushek (2002) at 5-9.
L. Elaine Halchin (1999), “And This Parent Went to Market: Education as Public Versus Private Good,” in Robert
Maranto, Scott Milliman, Frederick Hess & April Gresham (eds.), School Choice in the Real World: Lessons from
Arizona Charter Schools, Boulder, Colorado: Westview Press, 19-38, at 26-27.
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economies of scale, market failures in general and redistributive motives,” and argues that “in the
presence of these, purely private decisions are unlikely to lead to optimal social decisions.” The
externalities created by education are generally positive, at least from the government’s perspective, and involve such factors as economic growth or increasing a student’s future level of socialization or civic and government participation. However, Hanushek posits that these effects may be
more attributable to large differences in overall educational levels between developed and developing countries or regions, rather than indicative of effects at the margin, such as an increase of
one year of graduate education.46
Other important market failures in education include informational asymmetries in
measuring school quality,47 principal-agent problems, and incentive problems created by the
cumulative nature of education.48 All of these problems manifest themselves in the seemingly
simple process of applying standards to help judge school performance. Effort of students and
their innate ability are unobserved and are influenced and reinforced by parents, teachers
(including past teachers), and other environmental effects. Overall classroom performance is an
aggregate of many children, all with multiple influences. There are potential reporting problems
from the classroom to the school level to the oversight administration, as well as moral hazards of
“teaching to the test” or of potential lack of student motivation when testing carries no
consequences. Redistribution has also been cited as a reason for government intervention, in
order to overcome the tendency of housing stratification to reinforce educational stratification.
However, as Hanushek notes, the existence of these market imperfections points to the need of
some government involvement, but does not necessarily counsel for a system that is both publicly
financed and publicly provided.49
The provision of public goods has always presented a theoretical problem for social scientists, particularly in situations where the goods exhibit some aspects of private and public goods,
or where the benefits and costs may be felt as externalities by groups outside the group responsible for providing the good to its members. Institutional economics represents a school of thought
that attempts to analyze these public goods problems (as well as many other problems) by looking
at how they are influenced by the institutions of society. Under doctrines of institutional economics, these institutions shape economic activity and determine the success of the society in question. As North has noted, the variable success of similar programs in different countries can often
depend in large part on the structure of the institutions in which the program is implemented.50
One of the most difficult institutional problems has been the problem of collective goods.
Mancur Olson, in his influential book, The Logic of Collective Action,51 highlighted how difficult
“solving” collective goods problems can be for groups, particularly larger ones, since the interests
of individual members of a group are more likely to diverge with the collective interest as the
group grows. This occurs not only because of increases in the heterogeneity of the group, but also
because the practice of free-riding or cheating becomes easier as the group becomes larger. It is
precisely this collective action problem that is often seen as the justification for provision of public goods by government.
46
47
48
49
50
51
Hanushek (2002) at 16-17.
Id. at 19.
Elinor Ostrom & Gina Davis (1993), “Nonprofit Organizations as Alternatives and Complements in a Mixed
Economy,” in David C. Hammack & Dennis R. Young, eds., Nonprofit Organizations in a Market Economy, San
Francisco: Jossey-Bass Publishers, at 29-32, 36-37.
Hanushek (2002) at 21.
North (1990) at 101.
Mancur Olson (1971) The Logic of Collective Action, Cambridge, MA: Harvard University Press, (2d ed.) at 3336.
– 10 –
Olson also proposed the concept of “fiscal equivalence” which maintains that Pareto efficiency is obtained if all the beneficiaries of a particular public good can be made to participate in
the funding and decision-making regarding the good in proportion to the benefits they receive.52
Engelhardt has described this principle as making three collective communities coincide: (1) the
Benefit Collective (BC), (2) the Cost Collective (CC), and (3) the Decision Collective (DC).53
When these three collectives do coincide, there are no externalities and the public good will be
provided to the satisfaction of the community as a whole. Sadly, this does not usually occur in
practice, since it can be very difficult to develop decision and taxation rules that perfectly unite
these communities. When these communities are not united, there exist potential solutions, but
these often create new issues, such as additional principal-agent problems.
There have been a number of attempts to develop economic theories of local governments
that address the problems of the provision of local public goods. I will not detail them all in the
current discussion, but several are particularly useful to the issues at hand. A very famous, and
particularly relevant in the context of school policy in the United States is Charles Tiebout’s theory of “voting with your feet.” The basic premise of the Tiebout model is that taxpayers are able
to “vote with their feet” and will move to a jurisdiction that contains their optimal mix of local
taxes and contributions and the package of public services financed thereby.54 “Voting with feet”
need not be explicit when local public goods are financed through property taxes, and the tax
charges for these services capitalized into the value of homes, as subsequent contributions by
Wallace Oates and Bruce Hamilton have demonstrated.55 The theory, however, depends on the
existence of a sufficient number of jurisdictions to allow for product differentiation. A variation
upon the “voting with feet,” which will be discussed in more detail later in this paper is Bruno
Frey and Rainer Eichenberger’s concept of Functional, Overlapping, Competing Jurisdictions, or
FOCJ, which might be described as “voting with one’s wallet,” as it takes the territorial element
out of tax competition between jurisdictions by allowing taxpayers to choose their governmental
service provider without moving to a new jurisdiction.56
Also related to Tiebout’s “voting with feet” model is one he later developed together with
Vincent Ostrom and Robert Warren – the “polycentric circles” or “polycentric political system”
model.57 Under the polycentric circles model, authority is diffuse, and different levels of government will provided services depending on their ability to do so efficiently and effectively. When a
smaller unit of government can do so better than a larger one, the quasi-market for government
services, created by the existence of different units of government that can be authorized to perform certain functions, will determine which unit or level of government is best to provide the
service. Within the model, the relationships between governments are heavily influenced by informal relationships such as bargaining, and also more formal ones, such as lower level governments contracting with higher level ones to provide certain services that cannot be provided effi-
52
53
54
55
56
57
Mancur Olson (1969) “The Principle of Fiscal Equivalence: The Division of Responsibilities Among Different
Levels of Government,” American Economic Review 59:479-487.
Gunther H. Engelhardt (1989), “The Economics of Public Goods: Basic Concepts and Institutional Perspectives
for Comparative Systems Analyses” Diskussionsschriften aus dem Institut für Finanzwissenschaft der Universität
Hamburg, No. 30/1989.
Tiebout, (1956).
Oates (1969); Hamilton (1976). See also Hoxby (1999), at 26-28 (argues that the implicit controls imposed by
Tiebout competition in a property tax capitalized environment are at least as effective as the actions of a central
social planner acting with nearly perfect information); see also Hanushek (2002) at 21.
Bruno S. Frey & Rainer Eichenberger (1999), The New Democratic Federalism for Europe, Cheltenham, UK:
Edward Elgar.
Vincent Ostrom, Charles M. Tiebout & Robert Warren (1961) “The Organization of Government in Metropolitan
Areas: A Theoretical Inquiry,” American Political Science Review, 55:831-842.
– 11 –
ciently.58 This particular theory, while not inconsistent with Tiebout’s local competition model,
has the advantage of allowing for more problems to be solved through “voice,” or working within
the existing system, rather than through “exit,” which involves the threat “voting with one’s
feet.”59
The concept of polycentric circles can be expanded outside of governments to include additional actors from the private and nonprofit (third) sectors, like Burton Weisbrod did in his
model of nonprofit public goods provision.60 Since the sorting of taxpayers under a Tiebout system will not lead to complete homogenous populations, there will be taxpayers who either are receiving too much or too little of the public goods they desire, since the goods will tend to be provided at the level of the median voter.61 At least for the taxpayers who demand an output of public goods greater than those provided by the local government, there is the option of turning to
private provision, either through for-profit providers or more often for public-type goods, to nonprofit provision.62 Thus the provision of public goods is very much polycentric, but expanded to
include the wider universe of non-governmental entities as providers. The methods of service delivery within this system can become even more diverse and robust by moving beyond competitive relationships to cooperative linkages between local governments and nonprofits found in public-private partnerships.63
Applications of these concepts to education have relied on two divergent paradigms of
government activity – one in favor of centralization and the other decentralization.64 Academic
studies have been inconclusive on the effects of institutions on student performance, including the
issue of decentralization. For example, Hanushek notes that “the evidence currently does not support the effectiveness of local decision-making in the current environment. There is ample evidence, moreover, that policy makers do not fully believe that local decision makers will do a good
job.” He acknowledges, however, that this may be more due to the inadequacy of current incentives than to any overall weakness with local control.65 Levacic and Woods found little evidence
that quasi-markets in the United Kingdom were leading to improved performance,66 and Summers
and Johnson found that school-based management had little effect.67 Bishop and Wößmann, on
the other hand, argue strongly that institutions do matter in education, including decentralized decision-making,68 and Hoxby provides several empirical studies indicating that more decentralized
58
59
60
61
62
63
64
65
66
67
68
Id.
See generally Albert O. Hirschmann (1970) Exit, Voice and Loyalty: Response to Decline in Firms, Organizations,
and States, Cambridge, MA: Harvard University Press.
Burton Weisbrod (1986) “Toward a Theory of the Voluntary Nonprofit Sector in a Three-Sector Economy“, The
Economics of Nonprofit Institutions: Studies in Structure and Policy, Susan Rose-Ackerman, ed., Oxford University Press: New York 21-44.
Anthony Downs (1957), An Economic Theory of Democracy, New York: Harper & Row.
Weisbrod (1986) at 26-28.
See Dietrich Budäus & Gernot Grüning (1996) “Public Private Partnership – Konzeption und Probleme eines Instruments zur Verwaltungsreform aus Sicht der Public Choice-Theory,” in Dietrich Budäus & Peter Eichhorn,
Public Private Partnership: Neue Formen öffentlicher Aufgabenerfüllung, Baden-Baden: Nomos Verlagsgesellschaft, 25-66.
Anita A. Summers & Amy W. Johnson (1996) “The Effects of School-Based Management Plans,” in Eric Hanushek & Dale W. Jorgenson, eds., Improving America’s Schools: The Role of Incentives, Washington, DC: National Academy Press, 75-96, at 75.
Hanushek (2002) at 46-47.
Rosalind Levacic & Philip A. Woods (2000), “Quasi-markets and school performance: evidence from a study of
English secondary schools,” in Manfred Weiß & Horst Weishaupt, eds., Bildungsökonomie und neue Steuerung,
Frankfurt am Main: Lang, 53-95, at 86-87.
Summers & Johnson (1996).
Wößmann (2000); John H. Bishop & Ludger Wößmann (2001), “Institutional Effects in a Simple Model of Educational Production,” Kiel Institute of World Economics Working Paper No. 1085.
– 12 –
educational systems do indeed perform better.69 In addition, the PISA Study, although finding a
number of other factors more important, and noting that “it is hard to link levels of autonomy with
performance,” it nonetheless did find organizational factors like the level of school autonomy and
the role of private schools to be significantly correlated with student performance.70 In addition,
while Hannaway argues that both decentralization and incentives appear to be ineffective when
applied alone, she argues that when combined they can be quite effective.71
In addition to academic concern about public goods problems and institutions, a related literature dealing with the practical problems of public administration, and urging decentralized,
market-driven solutions has grown tremendously in the 1990s. The most well-known example of
this literature is Osborne and Gaebler’s Reinventing Government,72 but the concepts were discussed in the field of education even before that time in Chubb and Moe’s controversial Politics,
Markets and America’s Schools.73 These reforming trends have led to the growth of New Public
Management, or Neue Steuerung in German, which tries to find new ways to structure governmental processes to better utilize incentives and information. In Germany the Neue Steuerung has
been applied broadly to public administration,74 and also more specifically to education.75 As will
be discussed later in this paper, German reforms to date, such as Schulautonomie and Schulprogramm programs have focused on the decentralization aspects of New Public Management, but
proposals to go further, into the realm of “functional privatization” also exist.76
One possible driver of school decentralization efforts may be the recognition that centralized command and control bureaucracies have not been able to address the problems of school
systems. As noted by Hanushek and Raymond, “we do not know how to link programs, resources, and other inputs to student outcomes.”77 Such difficulties arise because higher level
school administrators must cope with both informational difficulties in receiving the reports on
school performance, and then must respond to them with the appropriate incentives for change.
The upward flow of information also is impeded by the peculiar nature of education as a coproduced good – current performance is a function of not just the quality of the current educational offering, but also the efforts of the pupil, parents and prior teachers.78 The downward flow
69
70
71
72
73
74
75
76
77
78
Hoxby (2002); Hoxby (1999); Caroline Hoxby (1995), “Is there an Equity-Efficiency Trade-Off in School Finance
- Tiebout and a Theory of the Local Public Goods Producer,“ NBER Working Paper 5265; Caroline Hoxby
(1994b), “Does Competition Among Public Schools Benefit Students and Taxpayers?” NBER Working Paper No.
4979.
Knowledge and Skills for Life (2001) at 174-178, 205.
Jane Hannaway (1996) “Management Decentralization and Performance-Based Incentives: Theoretical Consideration for Schools,” in Hanushek & Jorgenson, eds., 97-109, at 98, 104-105.
David Osborne & Ted Gaebler (1992), Reinventing Government: How the Entrepreneurial Spirit is Transforming
the Public Sector, Reading MA: Addison-Wesley.
John E. Chubb & Terry M. Moe (1990) Politics, Markets, and America’s Schools, Washington, DC: The Brookings Institution.
See generally, Christoph Reichard (1994), Umdenken im Rathaus: Neue Steuerungsmodelle in der deutschen
Kommunalverwaltung, Berlin: Edition Sigma. See also Christian Inatowitz (1996), “’Reinventing Government’ –
Die Thesen Osborne/Gaeblers in institutionökonomischer Interpretation,” Diskussionsschriften aus dem Institut
für Finanzwissenschaft der Universität Hamburg, No. 43/1996, for an exposition of the institutional economic underpinnings of the reinventing government movement.
See Neue Steuerung im Schulbereich, KGSt-Bericht 9/1996 (discussion of application of output controls and New
Public Management in the school arena); Jens Harms (2000), “Wirtschaftlichkeit unter Bedingungen des New
Public Management – unter besonderer Berücksichtigung des Schulwesens,” in Manfred Weiß & Horst Weishaupt, eds., Bildungsökonomie und neue Steuerung, Frankfurt am Main: Lang, at 115-148.
Straubhaar (1996) at 51-52.
Eric A. Hanushek & Margaret E. Raymond (2001) “The Confusing World of Educational Accountability,” National Tax Journal 54(2):365-384 at 368.
Ostrom & Davis (1993) at 29.
– 13 –
of incentives and sanctions also raise significant informational issues as well as principal-agent
problems.
Methods for injecting accountability into the operation of public education are numerous.
Leithwood, Edge and Jantzi classify educational accountability measures into four categories:
(1)
(2)
(3)
(4)
the market competition approach;
the decentralized decision-making approach,
the professional approach; and
the management approach.79
Leithwood and his co-authors aptly characterize these accountability devices as “tools,”
noting that “typically they are a ‘set’ of tools to be used in combination, rather than ‘alternatives’
tools, which only one or two might be selected.”80 This is an important observation to keep in
mind, particularly in the context of the post-PISA debate in Germany, because while some proposals may be inconsistent with each other, the adoption of most does not foreclose efforts in
other areas as well. A significant portion of the control mechanisms used in the United States can
be classified as “market competition approaches,” such as vouchers, charter schools and other
school choice programs, whereas those in Germany fall more readily into the category of a “decentralized decision making approach,” such as school programs and internal curricular development. American examples of decentralized decision-making also exist, as evidenced by many
“school-based management” programs found in the United States.81
Standards programs, including curricular standards and testing, which are popular
throughout the United States and being increasingly discussed in Germany, are considered “management” forms of accountability under this topology.82 And although charter schools and standards-based reforms seem to be radically different approaches, since standards appear to be
largely top-down accountability measures and charter schools at first blush at least as marketoriented competitive accountability measures, a number of researchers have noted that the systems
have much in common.83 Charter schools are not actually a purely market-oriented reform, they
depend to a large degree on having standards (albeit often looser and more general than under curricular standards programs) imposed from above by some democratically accountable entity.84
Within this framework charters represent a potentially very effective means of applying “reinventing government” techniques to address public goods problems without sacrificing too much government oversight.85 They also present an opportunity for building public-private partnerships to
leverage the strengths of non-governmental entities, and creating multiple accountability relationships.
B. Indianapolis Charter Schools as FOCJs?
One particularly interesting feature of charter schools is that some of them may come as
close as any previous structure in constituting an FOCJ (Functional, Overlapping and Competing
79
80
81
82
83
84
85
Kenneth Leithwood, Karen Edge & Doris Jantzi (1999), Educational Accountability: The State of the Art, Gütersloh: Bertelsmann Foundation Publishers, at 21-28.
Id. at 34.
See Summers & Johnson (1996).
Leithwood, Edge & Jantzi (1999) at 49-61.
Hill & Lake (2002) at 2, 109.
Id. at 98-100.
Robert Maranto (1999), “The Death of One Best Way: Charter Schools as Reinventing Government,” in Robert
Maranto, Scott Milliman, Frederick Hess & April Gresham (eds.), School Choice in the Real World: Lessons from
Arizona Charter Schools, Boulder, Colorado: Westview Press, 39-57.
– 14 –
Jurisdiction). Swiss economists Bruno Frey and Reiner Eichenberger have proposed the concept
of FOCJs as a potential form of fiscal federalism better able to meet citizens’ needs than other current governmental structures.86 The four elements of an FOCJ – (1) Functional, (2) Competing,
(3) Overlapping, and (4) status as a Jurisdiction are all critical to Frey and Eichenberger’s conception of how they could successfully operate. The attention paid by Frey and Eichenberger to each
of these issues makes the FOCJ concept not only useful as a specific policy proposal, but also
makes the FOCJ a useful model for analyzing local government structures more generally. This is
particularly true for charter schools, because the FOCJ concept, with a few minor modifications
and caveats, presents an excellent model for analyzing their operation.
What exactly do Frey and Eichenberger mean by FOCJ? By “Functional” they mean that
these units of government have a special purpose – to operate schools or provide water or sewer
service for example – rather than being general purpose units of government that do many things
simultaneously. They argue that the advantage of functional units of government is that they may
be structured to be the optimal size for providing such services.87 This addresses Engelhardt’s
concern with the various communities of interest – benefit, cost, and decision – not coinciding in
many units of government. In addition, the limited functional nature, as opposed to a large bureaucracy providing dozens of different services at uncertain cost, may improve the transparency
of the operations, and the ease with which taxpayers can determine if the taxes they pay in comparison to the services they receive is efficient and/or desirable.88
The jurisdictions are “Overlapping” in two senses. The first, quite conventional sense, is
that they need not all share the same boundaries. A resident of a particular area will be a member
in more than one FOCJ. The water district need not have the same members as the school district
– neighbors could be in the same school district but different water districts for example.89 This
aspect is also present to some degree in local government in the United States. Indianapolis, for
example, in addition to the 11 school districts present within the city limits also has 13 distinct,
independent fire departments. The fire departments in many cases overlap with the school districts, but there are limited pockets of citizens who may be in the Washington Township School
system but not the Washington Township fire protection area. The second, and far more important, sense of “overlapping” is that jurisdictions performing the same function may overlap with
each other. By this Frey and Eichenberger mean, for example, that two school districts might
share the same territory, even though both are providing the same service. This form of overlapping is less common in practice, but may be seen most clearly in law enforcement, where there
may be city, county, state and federal authorities all patrolling the same territory. With charter
schools however, this feature of overlapping governments is extended to the provision of education services as well, particularly as is the case in Indianapolis, where the charter school sponsors
are not school districts, but the separate governmental entities of the city administration or a public university.
This points to the critical innovation of the FOCJ – that they are “Competing.” Although
local governments in the United States can be described as competing for residents within the
framework of the Tiebout model, they generally possess a monopoly for the provision of their particular services within their territory. Frey and Eichenberger propose to eliminate this territorial
monopoly by giving citizens the option of deciding to which jurisdiction they wish to belong, regardless of location. What this would mean is that the residents on a particular street could each
86
87
88
89
Frey & Eichenberger (1999). Frey and Eichenberger refer to a singular FOCJ as a FOCUS. Id. at 3. This convention has not been adopted by most other papers commenting on the FOCJ concept, and I will not adopt it either.
Id. at 5.
Id. at 8.
Id. at 5.
– 15 –
have selected a different school district. Under the FOCJ concept each resident would be required
to belong to a school district, whether on not they had children in school. The same would be true
for any other service – there would be no ability to opt out of sewer services for example. A resident could choose a lower cost option, but some amount of taxes for each service would have to
be paid. This is the “Jurisdiction” element of an FOCJ – it is mandatory and has some or all of the
traditional powers of government. Frey and Eichenberger foresee that an FOCJ-taxpayer would
possess rights to both economic competition in the form of “exit” (by leaving the FOCJ and associating with another) and political competition in the form of “voice” (democratic election of the
governing body of the FOCJ).90 At present there are very few examples of taxpayers having the
flexibility to choose to transfer their taxes from one government to another, although school
choice proposals, including vouchers and charter schools are beginning to make this possible.
Frey and Eichenberger have fairly ambitious plans for FOCJs, and argue that they could be
used as a means to address some of the problems of European Union integration. However,
Gerhard Schwarz argues that the concept has the greatest potential at the local level.91 Frey and
Eichenberger do focus to some extent on the local level, describing special purpose governmental
units, such as school districts in the United States, as being a form of “bastard FOCJs,” exhibiting
some, but not all aspects of the concept.92 However, the thesis of their work is to establish an alternative structure for a European Constitution. I believe the existing constitutional rules at the
national or supranational level are far too rigid to allow for the types of modifications necessary to
implement a FOCJ program.93 However, I agree with Schwarz that the concept has considerable
merit at the local level.
I submit that the Indiana Charter School law has already established an actual (almost)
FOCJ regime in the provision of school services. The “functional” aspect is fairly easy to establish – like most other American school systems, a charter school provides only educational services. Because the Indiana law not only allows for a competing form of school to be established
within the territory of Indiana school districts by other governmental and quasi-governmental
sponsors the “overlapping” and “competing” aspects are also present. Furthermore, it also provides a mechanism for shifting tax revenue from the school district to the charter school, meaning
that the competition comes at a cost to the local school district, which is another of the requirements laid down by Frey and Eichenberger. Charter school finance causes them to behave like
FOCJs and it appears that their existence is leading to an FOCJ-type market response. There is
some evidence that charter schools do change the behaviors of local public schools, although there
is still a fair degree of controversy as to whether these changes are positive.94
The FOCJ concept is not perfectly reflected in the charter school system, because the
“members” of the FOCJ are different. It is the parents of the school children who decide where
the tax dollars are directed, rather than allowing any homeowner, with or without children in
school, to “join” the FOCJ and designate that his or her taxes be redirected from the existing
90
91
92
93
94
Id. at 3, 6-7.
Gerhard Schwarz, “Comment on the paper by Rainer Eichenberger and Bruno S. Frey, ‘Democratic Governance
for a Globalized World‘“ undated.
Frey & Eichenberger (1999) at 52.
See also Peter Friedrich (2002), “Functional, Overlapping, Competing, Jurisdictions – FOCJ – an Instrument of
Regional Competition?” (forthcoming in Urban Development, Groningen) (draft of December 2001, at 4, 26). In a
sense, certain “bastard FOCJs” are developing in the European Union as certain countries, most notably the
United Kingdom and Denmark, opt out of certain parts of European integration. Without constitutional recognition, however, such an approach would never be able to incorporate all elements of the FOCJ proposal.
See Robert Maranto, Scott Milliman, Frederick Hess & April Gresham (1999) “Do Charter Schools Improve District Schools? Three Approaches to the Question,” in Maranto, Milliman, Hess & Gresham (eds.) 129-141; Miron
& Nelson (2002) at 200.
– 16 –
school district to the charter school. However, based on William Fischel’s observations about the
interest of homeowners in maximizing their property values within a property tax financed system
of school funding, 95 the childless homeowners may be content to allow parents to redirect their
school taxes for them, if it will lead to an overall improvement in school services and thus in
property values. Homeowners would experience the benefits or costs of changes in school quality
created by the charter schools, so long as the charter schools were operating primarily within one
school district. If the area of competition became larger, in that it crossed school districts, so that
any pupil could enroll and bring her state grant with her, the connection to capitalization becomes
more tenuous,96 but might not disappear altogether. Because the migration of the student to the
charter school is caused by a decision about school quality in the district of residence, this bleeding of funds away from a particular school district should have effects similar to any other piece
of evidence homeowners find to be a negative indication of value.
In addition, the parents would not have the ability to determine the level of funding available to schools generally, only where the particular funds attributable to their children would be
directed. Taxpayers still have a voice in settling the overall state policy on how much should be
spent on schools. They also have the ability to indirectly set the agenda of the traditional territorial school district through school board elections. The voters would in effect be delegating management responsibility more broadly than in the traditional school board situation. Parents would
also be empowered to seek out the best educational opportunities for their children and thus
maximize the district’s educational quality. Capitalization would not suffer as long as not too
many children crossed district lines, because benefits from charter schools would raise the overall
quality of the district’s educational package.
The question of “voice” within a charter school is more problematic, and is an area where
the Indianapolis charter system does not quite fall within the rubric of an FOCJ. In the Swiss tradition, Frey and Eichenberger stress very strongly the importance of direct democracy in the success of an FOCJ.97 As currently structured, the charter schools are set up by independent educational entrepreneurs, who then compete for students. The only explicit right given parents is the
right to select or not select a charter school for their children. There is no requirement that parents
have particular rights within the school governance structure. However, although not explicit,
there is reason to believe that charter schools will formalize some avenue for parents to influence
the administration. Much like corporate governance markets, parents will be drawn not just to the
school with the best initial returns, but also the one that allows for their concerns to be heard and
acted upon. Another possibility might be to give parents a periodic right to vote on proposed
changes to the school’s charter, which would then be submitted to the chartering authority for approval. The management of the charter school would be free to go beyond these requirements. In
addition, it will be influenced not just by parents’ ability to remove their children from the school,
but also by the oversight by the Mayor’s Office as the sponsor of the school. In terms of Olson’s
“fiscal equivalence,” the parents assure the quality of the private good component of education
through demand pressure, while the Mayor’s Office or other authorizer monitors the public good
elements of education by assuring access, nondiscrimination and general quality of the offering.
In many ways, a charter system is preferable to the pure FOCJ, because there are basic
rules of the game, so special rules to prevent cheating need not be developed. The concern with a
pure FOCJ is that some citizens, such as the retired or childless, would form an FOCJ for educa95
96
97
Fischel (2001) at 80.
Fischel argues that charter schools are not problematic under his model as long as school district boundaries are
respected, since the overall quality of schools within the district and the total taxes paid all remain within district
boundaries (E-mail to Author, April 2, 2002).
– 17 –
tion that would under-provide education, and thereby reduce their tax burden. Without a territorial identity, an FOCJ could be established for just these low-demanders, taking a major sector out
of the tax base for other education-FOCJs. Frey and Eichenberger propose to address this problem by creating rules for mandatory membership in an FOCJ.98 However, by instead applying a
general tax to all taxpayers within a larger jurisdiction, and then giving parents the choice of
schools, the charter program avoids having to create rules for this problem. Under such system
the broader class of voters still has control over revenue, however.
IV.
The Direction of Current German School Reforms
How might the charter school concept be applied in the German school system? I believe
more easily than perhaps other market-oriented reforms, for reasons inherent in the structures of
the German education system. Therefore, before proceeding with any analysis of how a charter
system might work in Germany, it is first necessary to discuss the most important features of the
German primary and secondary system of education. As a federal system, Germany exhibits a fair
degree of diversity within education policy, but there is a standardized core coordinated by the
Kultusministerkonferenz (KMK), an organization that coordinates the policies of each Land’s education ministry. In 1967 the KMK agreed to the Hamburger Abkommen, which sets formal federal standards for many aspects of education policy.99
A. The Dreigliedriges Schulsystem
Perhaps the most important distinguishing feature of the German educational system is the
importance of tracking students through different educational paths, beginning at the transition
from primary school (know in Germany as the Grundschule, including in most cases 1st through
4th grades) to secondary school. The tracking of pupils into different forms of secondary schools
(Sekundarstufe I or basic secondary school) is known as the dreigliedriges Schulsystem (threetrack system), which routes the highest ability students through Gymnasium, and other students
through Haupt- (general education) or Real- (intermediate education) Schule. The tracking decision is made based on the recommendation of the Grundschule, with the level of parent control
and involvement in this decision varying from Land to Land.100 Only the other German-speaking
countries Austria and Switzerland track their children into different school types so early in life.101
The 5th and 6th grades serve as an opportunity to monitor pupils and determine if placements are
correct, but in most cases the pupil is already assigned to one of the tracks.
This system provides at a minimum the opportunity for choice between school forms, at least in
the larger cities, and though the decision of which track a child would follow was traditionally
made by the primary school, in most Länder the decision is now made by the parents based on a
recommendation of the primary school.102 Also, where multiple schools of the same type exist,
there is usually the ability to select between these schools, and there is evidence that a significant
minority of students attend a secondary school that is not the one closest to their home.103 There
98
99
100
101
102
103
J. Lambert (1994) “School Legislation in Germany,” in DeGroof, 259-266, at 262.
The Education System in the Federal Republic of Germany 2000 (2001a), Bonn: Kultusministerkonferenz (hereinafter “Education in Germany”), at 73-74.
Jürgen Baumert & Gundel Schümer (2001b), “Schulformen als selektionsbedingte Lernmilieus,” in PISA 2000 –
Basiskompetenzen von Schülerinnen und Schülern im internationalen Vergleich (Deutsches PISA-Konsortium,
eds.), 454-467, at 454.
Focus, June 24, 2002 at 44.
Weiß and Steinert report that 86 percent of Gymnasien, 63 percent of Realschule and 41 percent of Hauptschule
report having students who have selected their school over another closer school of the same type. These students
represent 26%, 21% and 11%, respectively, of the total student population of these school types. Manfred Weiß &
– 18 –
is some permeability of the borders between the tracks, so students may transfer between school
types. This permeability has increased in recent years with the introduction of the Gesamtschule,
which combines the different Sekundarstufe I tracks (and sometimes Sekundarstufe II as well) into
one school, and with relaxed regulations on transfers from one school form to another. However,
mobility between the tracks has been mostly downward, with very few pupils moving up from
Hauptschule to Gymnasium or Realschule.104 One of the recommendations of the influential
Bertelsmann Foundation in response to the PISA results was to increase the permeability between
school forms.105
As a practical matter, this diversity is not present in many parts of Germany. Weiß, citing
Bargel and Kuthe, notes that there are five levels of school diversity present in Germany, and that
real competition for school services is possible only at the fifth level:
(1)
(2)
(3)
(4)
(5)
communities offering no secondary school or only a Hauptschule;
communities with an incomplete offering, often a Hauptschule and Realschule, or a
Hauptschule and Gymnasium;
communities that offer all three traditional tracks, but show no wider diversity;
communities with an integrated offering – Gesamtschule, and perhaps some portion, but not all, of the other, more traditional secondary school offerings; and
a fully diverse array of offerings, including the possibility of private offerings.
Weiß goes on to note that many of the smaller communities in Germany fall into the first category, meaning that for other types of secondary education, and in some cases all, that students
must be transported to other communities.106
It is also important to note that German schools will face significant declines in enrollment
over the next decade. This decline is already being felt at the primary school level, and enrollments are projected to drop to 77% of their 1999 levels by 2015. For secondary schools, Sekundarstufe I are now peaking, and will decline to 80% of 1999 levels by 2015, whereas Sekundarstufe II (11th to 13th grades of Gymnasien) enrollments will rise until about 2006, before
settling to 94% of 1999 levels in 2015.107 Such a demographic development will have important,
and probably negative, consequences for the financing of German schools.
B. School Administration
School policy in Germany is controlled by the Länder,108 but local governments exercise
some control over building and other external (as opposed to curriculum) decisions, but there are
many efforts currently underway in Germany to strengthen the independence of individual
104
105
106
107
108
Brigitte Steinert (2001) “Institutionelle Vorgaben und ihre aktive Ausgestaltung – Die Perspektive der deutschen
Schulleitungen,” in Deutsches PISA-Konsortium (2001) PISA 2000 – Basiskompetenzen von Schülerinnen und
Schülern im internationalen Vergleich, Opladen: Leske + Budrich, 427-454, at 451-52.
Gundel Schümer, Klaus-Jürgen Tillmann & Manfred Weiß (2002) “Institutionelle und soziale Bedingungen schulischen Lernens,” in PISA 2000 – Die Länder der Bundesrepublik Deutschland im Vergleich (Deutsches PISAKonsortium, eds.) 203-218, at 209.
“Konsequenzen aus PISA,” at 11.
Manfred Weiß (1998) “Schulautonomie im Licht mikroökonomischer Bildungsforschung,“ in Deregulierung und
Finanzierung des Bildungswesens, (Robert K. Weizsäcker, ed., Berlin: Duncker & Humblot), 15-47, at 33, (citing
M. Bargel & M. Kuthe (1992) “Regionale Disparitäten und Ungleichheiten im Schulwesen,“ in Strukturprobleme,
Disparitäten, Grundbildung in der Sekundarstufe I, (P. Zedler, ed., Weinheim: Deutscher Studienverlag)).
Quantitative Entwicklung im Schul- und Hochschulbereich (1999), Statistische Veröffentlichungen der Kultusministerkonferenz Sonderheft Nr. 97, Bonn, at 17.
However, this competency grows out of tradition and the general residual clause in Basic Law Article 70 granting
the Länder authority to legislate except where authority has been conferred upon the federation, rather than on any
explicit grant of authority. See Education in Germany 2000 (2001), at 17.
– 19 –
schools.109 Furthermore, unlike in many areas of social policy in which Germany relies heavily
on nonprofit organizations to provide services, pursuant to the concept of subsidiarity (Subsidiaritätsprinzip) under which functions are to be performed by the lowest level authority capable of
provision, the education system remains highly centralized and very much firmly within the grasp
of the state. Article 7(1) of the Basic Law provides that “the entire school system shall be under
the supervision of the state,” although other parts of Article 7 make some concessions for religion
generally and for the establishment of private schools. Furthermore, there is significant resistance
to the increased involvement of “undemocratic” actors, such as foundations, in the education reform process.110 The state’s tight control of the school system in Germany is a historical development, largely attributable to the Allgemeine Preußische Landrecht of 1794, a Prussian law that
established the state’s supervisory role over all schools, whether public or private.111
In general, school administration involves between one and three levels of administration
above the level of the individual school, varying from Land to Land. The top level, which is present in all Länder, is the state ministry of education, or its equivalent. The ministry maintains
overall authority over school administration (known as Schulaufsicht), particularly in areas of curriculum and staffing. The other common level of school administration is that of the Kommune or
community through the Schulämter. The Schulämter have responsibility for financing the
school’s physical plant and support staff, and are know as the Schulträger or school sponsors,
within the public school system. As discussed later, schools may also be in freie Trägerschaft, or
privately-sponsored. A third intermediate level of regional authorities (Bezirke) between the state
and local authorities is found in some Länder, for example Lower Saxony.112 The management of
individual schools is usually vested in a director (Schulleiter), who has responsibility similar to
those of an American public school principal.113
Recently there have been efforts to increase the autonomy of local schools, know as the
Schulautonomie movement in German. For example the Hamburg School Law of 1997 (Schulgesetz) provides, at least formally, a certain level of independence for individual schools: § 50 of the
school law provides that schools are to be self-administered,114 and § 51 requires each school to
develop an independent curricular program, known as the Schulprogramm.115 Autonomy also is
furthered by a fairly elaborate system of school governance contained in the school law, which
provides for input from parents, teachers and in some cases students. At the peak of this local
governance system is the Schulkonferenz, which serves as the board of directors of a school. The
selection of the Schulkonferenz comes from potentially three bodies – the Elternrat, which is
made up of parents, the Schülerrat, which is present only at the secondary school level and is
made up of students, and the Lehrerkonferenz, which is an organization of the teachers of the
school. The school director (Schulleiter) also serves on the Schulkonferenz.116 The Schulkonferenz is analogous to “school councils” that have been established in many American states as part
of school based management programs.117
109
110
111
112
113
114
115
116
117
See for example Bastian & Rolff (2001); “Autonomie Konkret” (1996) Pädagogik 96/1.
See for example Dieter Wunder (2000) “Was ist am heimlichen Bildungsminister Bertelsmann zu kritisieren?”
Pädagogik 00/7-8, at 45-47.
See Siegfried Jenkner (1998) “Ist unsere Schulverfassung noch zeitgemäß?” in Frank-Rüdiger Jach & Siegfried
Jenkner, eds., Autonomie der staatlichen Schule und freies Schulwesen: Festschrift zum 65. Geburtstag von J. P.
Vogel, Berlin: Duncker & Humblot, 1-16, at 2-3; Straubhaar (1996) at 4-5.
Education in Germany, at 48-49, 75-78.
Id. at 52-54.
Hamburgisches Schulgesetz (HmbSG) vom 16. April 1997, § 50.
Schulgesetz § 51.
Schulgesetz §§ 52-56 (Schulkonferenz); §§ 57-60 (Lehrerkonferenz); §§ 63-67 (Schülerrat); §§ 68-75 (Elternrat).
See Summers & Johnson (1994); Massachusetts General Laws Ch. 71 § 59C.
– 20 –
The Schulkonferenz has authority to decide the most important issues facing the school –
the hiring of the school director (although this takes the form of a recommendation, which can be
overruled by the Amt für Schule), the basic operational rules of the school, the establishment of
special programs such as full day operations, pre-school programs or integration programs, and
the approval of the Schulprogramm.118 Although publicly available, the Schulprogramm is not
intended to be a marketing brochure, rather a working document used to direct the school over the
medium term, like a strategic plan.119 The Amt für Schule is using the Schulprogramm together
with outcome-based research to monitor the decentralized system of decision-making.120
Financing of schools in Germany generally is handled as one of many areas within a larger
general-purpose government budget. The Länder typically bear the costs for teaching staff, making up about 80% of the total budget, whereas the Kommune finance support costs, accounting for
the other 20%. The federal government has no appreciable role in the financing of primary and
secondary education,121 although new proposals by the Bundesregierung in the wake of the PISA
study could change this.122 Since there are no specific taxes allocated to support schools exclusively, the general make-up of school tax revenues is that of the Länder and Kommunen. The
largest share of Land revenues come from the value added and income taxes, apportioned through
the Finanzausgleich (financial equalization) system, with the intent of sharing out the tax revenues in a way that assures a similarity of living standards pursuant to Basic Law Articles 72(2)
and 106(3). These taxes are shared between Länder and Bund in fixed proportions, unlike the
United States’ system, where states (and sometimes local governments) may levy their own income taxes at additional and variable rates. Local governments in Germany also participate in
some of these shared taxes and are subject to Finanzausgleich between Kommunen. They also
rely to some extent upon the Grundsteuer (land tax) and quite heavily on the Gewerbesteuer (a
local business tax). The Gewerbesteuer in particular is quite volatile, as it depends on the economic well-being of companies located within the jurisdiction.123
In very general terms, Germany’s federal system can be distinguished from that of the
United States by how the competencies for certain functions are allocated between levels of government. In Germany, the higher levels of government tend to have greater responsibility over
legislation and policy-making, whereas the lower levels assume more responsibility for
implementation. Although in many cases this involves the federal government setting policies
that are then implemented by state and local governments, there are some areas of state
competence, such as education, where policy is set by the state, and then implemented by local
governments. Particularly important in this structure is the concept of Allzuständigkeit, which
gives state and local governments control over all matters within their territorial jurisdiction, and
prevents the establishment of special-purpose districts (separate governments to handle a specific
function, such as school districts, solid waste districts or fire protection districts) on the same scale
as in the United States.124
118
119
120
121
122
123
124
Schulgesetz §§ 51.
Author’s interview of Norbert Maritzen, Leiter, Unterabteilung für Schulentwicklung, Schulforschung, Evaluation
und Entwicklung von Konzepten der Lehrerbildungg, Amt für Schule, Hamburg, Germany (February 13, 2002).
Author’s interviews of Hermann Lange, then Staatsrat, Behörde für Bildung und Sport, Hamburg, Germany (January 29, 2002) and Norbert Maritzen (February 13, 2002). Behörde für Schule, Jugend und Berufsbildung
(2001), Eigenständigkeit der Schule in staatlicher Verantwortung, Hamburg: Freie und Hansestadt Hamburg.
Education in Germany (2001) at 76-77, 87.
Bulmahn release of June 25, 2002.
See generally Gunlicks (1987) at 119-123; Nowotny (1999) at 136-141.
Gunlicks (1987) at 84-85. Gunlicks describes this as “spatial federalism,” as compared to the “functional federalism” found in the United States. Id.
– 21 –
(1) Private Schools
Additional educational diversity is provided by private schools, which, while not as prevalent in Germany as the United States, do present an alternative for some parents. In only about
5%, or about 650,000 students out of a total student population of about 12.5 million attend private schools. This percentage is highly variable by region – less than 2% of students in the new
Bundesländer attended private schools in 1996,125 whereas in Hamburg the total is over 8%.126
Around one-half of these private school students attend Catholic schools, with the remainder divided about evenly between Evangelical schools, Rudolf Steiner (Waldorf) schools, and other private schools associated with the Bundesverband Deutscher Privatschulen.127 Furthermore, private
schools tend to be heavily concentrated at the secondary level, making up over 10% of Gymnasium enrollments but only about 1% of Grundschule enrollments.128 However, private school enrollment in Germany has been growing over the past 40 years, with the proportion of pupils in
private schools in West German Bundesländer doubling from 3% in 1960 to 6.1% in 1991.129
Article 7 of the Basic Law allows private schools to be established only with the approval
of the State, and then only when they can show that their educational aims, facilities, professional
staff and financing are not inferior to state schools. Private primary schools are further required to
demonstrate that they serve a special pedagogical interest or satisfy an unmet need for a school
representing a particular denomination or philosophy,130 and therefore are quite rare.131 Decisions
of school authorities to deny permission to establish private schools may be challenged judicially,132 and there has been a significant amount of litigation surrounding this right to establish
private schools.133 Once established, private schools are subject to regulation by school oversight
officials in the Länder education ministries. The scope of this regulation depends in part on
whether the school is an Ersatzschule substituting for state-provided schools, or an Ergänzungsschule, which are complementary to the state system and generally are required only to give notice
125
126
127
128
129
130
131
132
133
Arbeitsgemeinschaft Freier Schulen (1999), Handbuch Freie Schulen: Pädagogische Positionen, Träger, Schulformen und Schulen im Überblick, Reinbek: Rowohlt Taschenbuch Verlag, at 545-552.
Straubhaar (1996) at 3.
Handbuch Freie Schulen, at 545-552.
Education in Germany at 87.
Straubhaar (1997) at 3.
The full text of these provisions is as follows:
(4) The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state
schools shall require the approval of the State and shall be subject to the laws of the Länder. Such approval
shall be given when private schools are not inferior to the state schools in terms of their educational aims,
their facilities, or the professional training of their teaching staff, and when segregation of pupils according
to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and
legal position of the teaching staff is not adequately assured.
(5) A private elementary school shall be approved only if the educational authority finds that it serves a special
pedagogical interest or if, on the application of parents or guardians, it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state elementary
school of that type exists in the municipality.
(Article 7, Basic Law of the Federal Republic of Germany, Official English translation, Press and Information Office of the Federal Government, as amended to July 16, 1998).
Education in Germany 2000 (2001) at 56.
Handbuch Freie Schulen, at 21.
See Johann Peter Vogel (2002), “Forum: Sind Finanzhilfe-Prozesse freier Schulträger noch zu gewinnen?” Recht
und Schule 1/02:2-10; Johann Peter Vogel (1996) “Die Ausgangslage zur Verfassungsfrage der Privatschulförderung” in Friedrich Müller & Bernd Jeand’Heur (eds.), Zukunftsperspektiven der Freien Schule, Berlin: Duncker &
Humblot.
– 22 –
rather than seek permission to begin operations or make other major decisions.134 Prior to opening, Ersatzschulen must demonstrate that the quality of the school is not inferior to the statesponsored school options and that they do not encourage segregation along social lines. Quality
as used in this sense does not mean that the private schools must adopt public curriculum or personnel practices, however. Once an Ersatzschule has obtained state recognition it also is entitled
to receive state funding135 and award official school leaving certificates (Abschlüsse).136
Limitations on private school tuition grow out of the clause in Article 7(4) providing for
state approval only “when segregation of pupils according to the means of their parents will not be
encouraged thereby.” In addition, most Länder impose waiting periods (disparagingly referred to
by private schools as “Durststrecke” (hard times)) on private schools, before allowing them to
receive public subvention.137 For these reasons, between the subvention and the limited tuition,
the funding available to private schools is not significantly better than the funding provided to
public schools, and may in some cases be worse. This occurs for several reasons. One is because
public schools in Germany usually are funded by two different levels of government – the state
for operating expenses, and the local government on issues of fiscal plant and maintenance, and
the obligation to provide subvention is often ascribed only to the Länder, leaving the facility costs
unaddressed.
The German Constitutional Court has ruled that the Länder have some obligation to maintain this state support at a level adequate to allow the private schools to meet the Basic Law requirement that their offerings not be inferior to those of public schools.138 However, the debate
over what constitutes adequate funding continues, and the flexibility courts allow the Länder in
setting these subvention rates varies greatly from case to case.139 For example in Saxony, the private school is guaranteed only 90% of the public school cost from both the state grant and the
school’s own resources.140 The Arbeitsgemeinschaft Freier Schulen in 1999 estimated that for a
Gymnasium pupil, private schools received only 8,000 DM of the total cost of 11,000 DM through
subvention.141 To make up this difference private schools are using a number of methods, including differentiated fees, stipends out of endowments, and in the case of confessional schools, subsidization through other church funds or through the use of church employees to provide free or
reduced cost labor.142 The legal issues relating to the availability of state funding have been
largely resolved, so the matter has become a political question, but independent private schools
have little influence in the political realm, and the confessional schools have shown little interest
in pressing the funding argument further.143
134
Education in Germany 2000 (2001) at 57. In some Länder, such as Lower Saxony, religious Ersatzschulen are
exempted from such stringent approval requirements, however. Author’s interview of Ingrid Messer, Bezirksregierung Lüneburg, July 15, 2002.
135
This stands in stark contrast to the United States, where some state constitutions, for example Massachusetts and
Michigan, specifically prohibit the state from giving financial support to private schools. Miron & Nelson (2002)
at 12-13.
136
Education in Germany 2000 (2001) at 58-59.
137
Handbuch Freie Schulen, at 22. This “Durststrecke” has been upheld by the German Constitutional Court. BVerfGE 90 (1994), 107 ff.
138
BverfGE 75 (1987), 40 ff.; discussed in Vogel (2002) at 2.
139
Id. at 7.
140
Id. at 4.
141
Handbuch Freie Schulen, at 18.
142
Id.
143
Author’s telephone conversation with Johann Peter Vogel, June 24, 2002.
– 23 –
(2) Reform Efforts
Reform of German schools has generally been from within the educational establishment,
and often from the top down. This has led to concern about what Gisela Färber has described as
the “Diktatur des Angebots” (dictatorship of supply or offerings).144 Much of the emphasis in the
Schulautonomie debate has focused on empowering the school directors. This empowerment has
focused on greater freedom to develop curricula and determine the day-to-day operations of the
school and on concerns over pluralism and political legitimization in the educational policy
field.145 However, these reforms have not gone so far as to impose significant financial responsibility or pressure on the schools individually. Efforts have also been made to bring the principles
of “New Public Management” into schools,146 but Schulautonomie efforts have also been criticized for being more “policies from above, than development from below.”147 Leithwood, et al.,
describe these methods as inner-directed school choice, where the focus is on developing from
within to satisfy internal constituencies, in contrast to outward directed programs, that rely on
markets.148
As discussed previously, more radical approaches such as vouchers and educational savings accounts have been mooted, but seem too blatantly market-oriented for typical German sensibilities. At the very least, even if a voucher program were to be implemented in German it
would look very much like a charter school program, barring significant changes to the control of
schools by the state through its Schulaufsicht authority. This is because a charter school program
is not simply a supply-side educational reform. Rather, it is a reform that addresses both the supply side (through “chartering” and the loosening of standards) and the demand side (through a
strong commitment to school choice and to funds following students to their schools of choice).
Without these demand side elements, a charter school program would not be successful or even
possible. German voucher programs may very well evolve in the direction of charter schools as
they are implemented. Likewise, it is quite instructive to view some of the evolving school decentralization efforts as analogous to charter schools, since at their basic level they depend upon
school choice of some kind, although not always of the pure market type contemplated by charter
school programs.
(a) Selbstständige Schule
Some of these German analogs to charter schools are already in development. The first is
a cooperative program between the Bertelsmann Stiftung and the government of the state of North
Rhine-Westphalia called “Selbstständige Schule,” which follows a similar pilot program known as
“Schule & Co.” This program attempts to free individual schools from bureaucratic structures.
Five areas are stressed to forward this independence:
(1)
(2)
(3)
(4)
144
more freedom over personnel matters;
greater flexibility in procurement;
development of innovative pedagogical methods;
stressing team oriented decision-making within the school; and
Gisela Färber (2000), “Bildungsreform durch Reform der Bildungsfinanzierung?” in Robert K. Weizsäcker, ed.,
Schul- und Hochschulorganisation, Berlin: Duncker & Humblot, at 199.
145
Leithwood, Edge & Jantzi (1999) at 11.
146
Id.; see also Neue Steuerung im Schulbereich (1996) (discussion of application of output controls and New Public
Management in the school arena); Harms (2000).
147
Johannes Bastian (1998) “Autonomie und Schulentwicklung: Zur Entwicklungsgeschichte einer neuen Balance
von Schulreform und Bildungspolitik,” in Johannes Bastian, ed., Pädagogische Schulentwicklung, Schulprogramm und Evaluation, Hamburg: Bergmann+Helbig Verlag, 13-24 at 14.
148
Leithwood, Edge & Jantzi (1999) at 35.
– 24 –
(5) use of internal evaluation techniques.149
The program is voluntary, requiring the Kreistag (county council) to vote with a simple majority
and the Schul- and Lehrerkonferenzen to vote with 2/3 majorities in order to participate. Once in
the program, increased flexibility is given in procurement, personnel and especially pedagogical
development, but the program management supervises the efforts of the individual schools in order to optimize the regional school landscape.150 This connection between internal development of
individual schools and networked development of a regional educational landscape is a critical
component of the program.151 Evaluation of a school’s efforts is first performed through an internal process, before reporting to the Schulträger and project management.
Financing of the program is cooperative between the Bertelsmann Stiftung, the government of North Rhine-Westphalia and the local school authorities. Bertelsmann provides the project management, and Land funds provide each participating school with funds for a half-time position and make other Land developmental funds available for use in the project. Local authorities
are then expected to supplement these amounts with their own funds.152
While there are many interesting aspects in this program, what is most interesting from an
organizational perspective is the increased flexibility of local schools to deal with personnel matters. As noted previously, because personnel costs are such a large portion of school budgets, financial autonomy has limited meaning unless accompanied by some control of personnel matters
and the accompanying funds. In the Selbstständige Schule program participating schools are
given control over determining the structure of their teaching positions and over the hiring process
for these positions. As the program brochure notes, this is a tremendous innovation for German
schools, and will give them a large measure of control not previously possessed by school level
authorities. This flexibility will allow schools to decide whether to hire additional teachers/aides
or to concentrate on information technology specialists or other support personnel, consistent with
the school profile and program developed through the program.153
The school receives significant responsibility and flexibility for pedagogical development
as well. Participating schools may change the scheduling of the school day, create new class
structures such as lecture-discussion group forms for certain classes, or differentiate curriculum.
Such decisions are intended to be made within a “team” framework, but the specific decision rules
can be developed by each school individually. The final aspect – self evaluation – seeks to tie together the other elements of autonomy by requiring extensive reporting and self-analysis as a first
step in the accountability process.154 This focus on giving schools the tools to achieve pedagogical goals represents an important step toward meaningful autonomy for local schools. While personnel flexibility by itself may not be sufficient to improve school performance, it certainly can
make the task of improving pedagogical offerings easier. Equally important as the internal structures is the significant outside technical support provided by the program management through the
149
150
151
152
153
154
Bildung gestalten – Selbstständige Schule NRW, Ministerium für Schule, Wissenschaft und Forschung des Landes
Nordrhein-Westfalen & Bertelsmann Stiftung (2001).
Id. at 6-7, 19.
See Wilfried Lohre, Gerhard Engelking, Christoph Höfer, Dieter Spichal (2000) “Einzelschulen entwickeln sich
gemeinsam,” Pädagogik 00/7-8, at 10.
Selbstständige Schule NRW at 12.
Id. at 14.
Id. at 16-19. The development of these aspects in the pilot program “Schule & Co.” are discussed in greater detail
in Bastian & Rolff (2001) at 32-36.
– 25 –
Bertelsmann Stiftung.155 This type of technical support may provide an alternative to strong incentives as a way to successfully supplement decentralization efforts.156
It is still difficult to assess the success of this program because it is just moving from a pilot program “Schule & Co.” to the larger “Selbstständige Schule” program that will include a larger portion of the schools in North Rhine-Westphalia. Because it is voluntary, it will be interesting to see if the participation of some schools in the program puts pressure on nonparticipating
schools to improve their offerings as well or induce them to join the program, or whether the effects will be limited to participants. The initial indications appear good, because in the last year of
“Schule & Co.” fully 67% of the schools in the community of Herford and 49% of those in
Leverkusen, were participating in the program.157 Furthermore, because participation was voluntary and required a 2/3 majority of the teaching staff, the focus on internal teamwork was greatly
facilitated by an energized teaching staff standing behind the program.158 In addition, the support
of the staff grew over time, thanks to the initially high levels of support required to enter the program, which allowed significant peer pressure to be brought to bear on those who resisted change
without clear reasons.159
The goal of developing a regional school landscape gives this program more of a cooperative than a competitive feel to it, since the participating schools were not only encouraged to develop independence of internal operations, but to build bridges between individual schools to
serve the needs of the overall regional educational community. This goal was addressed in part by
training the management teams from participating schools of different school types together, to try
to build relationships.160 Such cooperation is consistent with the intent of the program to influence other schools by providing an example, rather than competition.161 This particular aspect of
cooperation could be extremely important in the development of German school choice programs,
because of the country’s dreigliedriges System that places different curricular tracks in different
schools. If attention is not given to potential competition between schools of different types, the
cohesiveness of this system could be lost.
From the voluntary nature of the program, and the strong ties to the existing school administration, Selbstständige Schule resembles the charter school concept of a conversion school,
where the faculty and parents of a school decide to leave the normal school district structures and
become a charter school. The emphasis on development of a regional school landscape also leads
to the development of multiple accountability relationships that are important in the development
of successful charter schools.
(b) Club of Rome Schools
Potentially more in keeping with the independent charter school concept, but on a much
smaller scale, are the efforts of the Deutsche Gesellschaft Club of Rome to develop Club of Rome
Schools. The Club of Rome, an international organization based in Hamburg, Germany and including many illustrious public officials as members, is most famous for its 1972 report, the Limits to Growth, 162 which warned that increasing population growth and industrialization would
155
156
157
158
159
160
161
162
Selbstständige Schule NRW at 7.
Hannaway (1996) at 107.
Bastian & Rolff (2001) at 5.
Id. at 42.
Id. at 36, 42.
Id. at 44-45.
Weisker e-mail, August 27, 2002.
Donella H. Meadows, Dennis I. Meadows, Jorgen Randers, William W. Behrens, III (1972), The Limits to
Growth: A Report for the Club of Rome’s Project on the Predicament of Mankind, Universe Pub.
– 26 –
strain the Earth’s resources within 100 years. Since that time the organization has been quite active in the fields of sustainable development, and many other international issues, including education. The plan for Club of Rome Schools is to establish a network of schools, at first in Germany, but possibly later expanding to include other countries, based on the principles of the Club
of Rome, and using pedagogical methods that are more open and flexible than those found in traditional German schools.163 The Club is working with five Länder to try to develop schools to
open in the fall of 2003. Exactly how these schools will be structured is still an open issue and
may vary in each Land.164 The initial intent of the program was to try to establish Club of Rome
Schools as public schools, but now establishing them as private schools is being considered in
several Länder. The issue of establishing the schools as new schools or converting them from existing schools is also an open question. This uncertainty of who will be the sponsor of these
schools points to the interesting netherworld inhabited by a school of this type within the German
system. It is clear that Club of Rome Schools are not intended to be operated as traditional public
schools, but at the same time the Club of Rome is interested in developing this new school form
with the cooperation of state education authorities.165 In this sense, some Club of Rome schools
may be established in a manner similar to public-conversion charter schools and others like private independent charter schools. The reality will be that these schools are neither public nor private, but because of the extensive nature of the public-private partnership involved with founding
and operating these schools, past ideas about classification of schools will have to be abandoned.
Such a change actually should have less impact in Germany than it would in the United
States, since German private schools already receive a subvention from the state and are subject to
significant regulation. Private schools in Germany distinguish themselves from public schools
largely in their ability to hire staff, select students and status as schools of choice.166 The reforms
of the “Selbstständige Schule” program have begun to blur some of these lines as more operational autonomy has been given to the participating schools. Likewise, the strict accountability to
state education authorities has been replaced by the multiple accountability relationships found in
charter schools,167 as the Bertelsmann Foundation assumes a significant role in assuring that the
goals of the program, and thus the overall quality of instruction at the school, are met. Such multiple accountability relationships also appear to be contemplated in Club of Rome Schools, since
the schools will be operated under the general umbrella of the Club of Rome, with the funding of
a major local foundation or other nonprofit, and with the blessing of school authorities at the state
and probably local level. Furthermore, as public schools, both Selbstständige Schule and Club of
Rome Schools will operate school councils with parent and teacher representation, adding additional layers of accountability. By analogizing these new school forms to the American concept
of charter schools, and using them as models of how new school forms will operate within the
German system, I believe German education authorities can take advantage of a great deal of
school reform experience and research as they attempt to develop new forms of schools to meet
the challenges facing German education.
163
164
165
166
167
Peter Meyer-Dohm (2002), “Die Lernherausforderungen für zukünftige Generationen,” presentation to the Conference Innovationsvorhaben im allgemein bildenden staatlichen Schulwesen in Deutschland, Hamburg, Germany,
May 3-4, 2002.
The Länder currently involved with the program are Bayern (Bavaria), Hessen, Niedersachsen (Lower Saxony),
Sachsen (Saxony), and Schleswig-Holstein. Author’s interviews of Axel Beyer, Hamburg, Germany, June 25 &
July 18, 2002.
Id.
Author’s interview of Johann Peter Vogel, Berlin, Germany, April 5, 2002.
See Hill & Lake (2002) at 85-86.
– 27 –
(c) Future Directions
How might a broader system of charter schools be implemented in Germany? First of all,
as stated previously, this proposal could be implemented as part of a voucher program or as a selfstanding program. Because of the fairly strict nature of public oversight of all school forms in
Germany, it is likely, absent significant loosening of the regulatory reins, that a pure voucher program would end up involving state approval of the alternative schools.
In my view, Frey and Eichenberger have raised a crucial point when they stress the importance of competition in assuring efficiency. Charter school programs are one way to bring some
market pressures to bear, by assuring some portability of education funding, but to maintain traditional governmental controls as well, by requiring that chartered schools meet minimum standards
to receive state funding and continuation of the charter. To foster competition in the schools arena
in Germany would require a major shift in the attitudes of state and local school officials, but is
possible. In the Flächenländer (the territorial states, i.e. all Länder except the city-states), this
could be accomplished by the school ministries withdrawing from the day-to-day operation of
schools and instead focusing more on maintaining standards and approving schools – in effect extending the doctrine of subsidiarity to the school arena. This could be accomplished by separating
the school oversight function from the operational function, as might be necessary in the case of
the city-states, but is probably better served by allowing outside actors also to establish schools.
Charles Glenn has noted that “the process of administrative approval of independent schools in
Germany . . . has created growing pressure upon them to conform to the model of state
schools.”168 If school oversight authorities loosened their grip somewhat, the state level school
authorities would truly be “steering rather than rowing,” to borrow a phrase from Osborne & Gaebler’s Reinventing Government.169
For schools increased subsidiarity would mean that central authorities should not try to
make decisions better left locally, but should address issues such as the establishment of standards
and the assurance of equitable school finances. The principle of subsidiarity states that functions
should be performed at their lowest level, and that higher authorities should not interfere if there
are adequate capabilities at a lower level.170 The concept itself has been adopted as an important
part of the doctrine of the Catholic Church in Germany and has been accepted by other sectarian
and nonsectarian social service agencies in Germany. In the provision of social services subsidiarity is seen by many as a critical guarantor of diversity of services.171 It is formalized as a part of
German law through Article 23 of the Basic Law,172 and also the law of the European Union.173
168
169
170
171
172
Glenn (1994a) at 325.
Osborne & Gaebler (1992) at 34-35; see also Chubb & Moe (1990) at 215-29 (proposing state school choice offices to regulate the provision of school services by public and private providers).
Alain Delcamp (1994), Definition and limits of the principle of subsidiarity, Paris: Council of Europe Press (Report prepared for the Steering Committee on Local and Regional Authorities (CDLR) No. 55), at 9.
See generally Glenn (2001) at 131-164, 185; Wolfgang Seibel (1992) “Government-Nonprofit Relationships in a
Comparative Perspective: The Cases of France and Germany,” in Kathleen D. McCarthy, Virginia A. Hodgkinson
& Russy D. Sumariwalla, eds. The Nonprofit Sector in the Global Community: Voices from Many Nations, San
Francisco: Jossey-Bass, 205-229; Helmut K. Anheier & Wolfgang Seibel “Germany,” in Lester M. Salamon &
Helmut K. Anheier, Defining the Nonprofit Sector: A Cross-National Analysis, Manchester: Manchester University Press, 128-168; Lester M. Salamon (1999) “Government-Nonprofit Relations in International Perspective,” in
Elizabeth T. Boris & C. Eugene Steuerle (Eds.), Nonprofits and Government: Collaboration and Conflict, Washington, D.C.: Urban Institute Press, pp. 329-367. However, Seibel has argued that the concept can be abused
when government unloads intractable problems onto the nonprofit sector as a way of shifting blame. See Wolfgang Seibel (1989) “The Mellow Weakness Function of Nonprofit Organizations” in Estelle James (ed.), The
Nonprofit Sector in International Perspective: Studies in Comparative Culture and Policy; New York: Oxford
University Press.
Basic Law (1998).
– 28 –
Since its inclusion in the law of the European Union, the concept has generated a significant
amount of debate, since the definition of the term itself is ambiguous and subtle. It includes both
the idea of the higher authority holding its power in reserve, until it is needed, but also an obligation to provide assistance.174 Both strands of subsidiarity – noninterference and support – track
closely with the ideas behind charter schools, which allow independent schools to operate with
limited government interference once chartered, but also assure government financial support.
Strangely, the concept has not been applied to schools,175 in large part because the state,
particularly Prussia in the 19th Century, accepted responsibility for providing a universal school
system as a way of maintaining control of the moral and political education of the population.176
This occurred in spite of the views of influential German thinkers such as Wilhelm von Humboldt,
who wrote, “the State must wholly refrain from every attempt to operate directly or indirectly on
the morals and character of the nation .everything calculated to promote such a design, and particularly all special supervision of education, religion, sumptuary laws, etc., lies wholly outside
the limits of its legitimate activity.”177 Despite this tradition, Article 7(1) of the Basic Law states
that “the entire school system is under the supervision of the state,”178 which has been interpreted
by the German Constitutional Court to mean “the totality of the state’s dominion over the school,
which means the whole competence of organization, planning, direction and supervision of the
school system.”179 Strengthening the autonomy of elementary and secondary schools therefore
could very much be seen as a return to subsidiarity, rather than a complete break with German tradition. Indeed, the decisions of the German Constitutional Court allowing the operation of private
schools and requiring their subvention could be seen as an initial step in this direction.180 Thomas
Straubhaar raises the issue of subsidiarity in his proposal for school privatization, focusing more
on the demand side in describing a system of mixed financing, and though not explicitly raising
the concept with regard to education supply, does propose reforms that would lower the barriers to
entry faced by education providers.181
There are a number of possible outside actors. An opening of the attitudes of school administrators toward private schools, accompanied by attempts to fund these schools more in line
173
174
175
176
177
178
179
180
181
Treaty on European Union, Article 3(b), current Article 5, Treaty on European Union as amended by the Amsterdam Treaty, “Consolidated Version of the Treaty Establishing the European Community,” in Consolidated Treaties, Luxembourg: Office for Official Publications of the European Communities, 1997.
Delcamp (1994) at 10-11.
In Subsidiarity and Education, which was prepared following a pan-European conference on the role of subsidiarity in education, there are two contributions dealing with Germany, Lambert (1994) and H.-P. Füssel, “The Attribution of Powers as to Education within Germany,” 267-70. However, rather than describing a rich culture of
subsidiarity in German education, these papers outline various constitutional and statutory provisions structuring
German educational federalism, and point to a number of centralizing tendencies within German education policy.
Indeed, the story told in Glenn’s international survey of subsidiarity in the same volume is one demonstrating a
decided lack of subsidiarity. See Glenn (1994b) at 351-55.
Jenkner (1998) at 2-3; Handbuch Freie Schulen, at 10-11; Vogel Interview, April 5, 2002.
Wilhelm von Humboldt (1792), The Limits of State Action, (ed. & trans. J.W. Burrow, Indianapolis: Liberty Fund,
1993) at 81, quoted from Charles L. Glenn (2001), The Ambiguous Embrace: Government and Faith-Based
Schools and Social Agencies, Princeton, NJ: Princeton University Press, at 18.
Basic Law (1998) at 42.
Federal Constitutional Court decision of December 6, 1972, BverfGE 34, at 165, 182 (quoted in H.-P. Füssel
(1994) at 269).
Subvention plays an important role in the concept of positive subsidiarity, which goes beyond the simple noninterference advocated by von Humboldt, to include the concept of providing support to the lower level of government
or civil society. This particular formulation of subsidiarity can be traced to the Latin root of the word and the initial discussions of the concept by Johannes Althusius in the late 16th century. See Ken Endo (2001), “Subsidiarity
& its Enemies: To What Extent is Sovereignty Contested in the Mixed Commonwealth of Europe?” European
University Institute Working Paper RSC No. 2001/24 at 9-10.
Straubhaar (1996) at 46, 51-52.
– 29 –
with actual public school costs, would help these schools to be more effective competitors and
would generally foster innovation.182 Other sponsors, such as the numerous private foundations
pursuing innovative programs, could be encouraged to charter and support schools of their own,
either as purely public schools, or as private schools. The federal government could also become
a sponsor of schools, or at least a source of seed money and/or matching funds for innovative programs pursued by others.183 Such an approach has the advantage of relying on the educational
entrepreneurs to find the opportunities, but not requiring them to totally fund their operations during the risky start-up phase. One particular way this could be done would be for these educational
venture funds to fund a portion of the operations of private schools during the Durststrecke startup phase.184
Religious schools could serve as a good source of school sponsors. Charles Glenn has
contributed another important observation with regard to the provision of educational and social
services in Europe as compared to the United States, and that is the role played by churches and
faith-based organizations, which he describes as an “ambiguous embrace.”185 Regardless of
whether it is desirable, the connection between the state and the established churches in Germany
is much stronger than that found in the United States, because of support for the churches through
the church tax and subvention of church-sponsored social programs and schools. Concern over
confessional teaching finding its way into schools186 likewise is of less concern when considering
additional aid to church-sponsored schools in Germany. Except for Bremen and Brandenburg,
confessional (religious) teaching is required in public schools already. With such a favorable environment for church involvement already, the Länder could achieve significant benefit from further loosening their grip on church-sponsored and other private schools, and by then working with
these schools to encourage educational innovation and diversity. Church-state relations, particularly those of Islamic congregations and schools, have at times been contentious187 and are likely
to become more so as Germany struggles with its status as a multicultural society, but in my view
it is unlikely to have a significant effect on the overall church-state relationship found in Germany.
Another incentive that could be offered by the educational venture funds would be able to
provide funds to charter schools at an average per pupil cost, rather than at an average cost per
pupil for the particular type of school. Although not unanimous, some in Germany have expressed great concern regarding the internal funding inequities between different types of schools
– secondary schools, particularly Gymnasien, receive far more per-pupil than primary schools.188
182
184
185
186
187
188
Gisela Färber also notes that such funding help prevent the welfare losses created by parents having to pay tuition
for private schools in addition to taxes. Färber (2000) at 172.
183
A similar program for federal support of educational innovation has been proposed by the Heinrich-BöllStiftung. Heinrich-Böll-Stiftung (2001) at 19.
Such a program would be at least theoretically possible from a legal perspective, but nothing like this has been
proposed to date either by private foundations or any government entity. Author’s telephone conversation with
Johann Peter Vogel, June 24, 2002.
Glenn (2001).
Id. at 38-39.
See generally Ingrid Brunk Wuerth (1998) “Private Religious Choice in German and American Constitutional
Law: Government Funding and Government Religious Speech,” Vanderbilt Journal of Transnational Law
31:1128-1205.
Bundespräsident Johannes Rau has described the need to address the nearly three to one discrepancy between average funding for Grundschule ($3531/child) and Gymnasium (Sekundarstufe II) ($9519) thusly: “Beim Bau eines
Hauses beginnt man aus gutem Grund mit dem Fundament und nicht mit dem Dach,“ Der Spiegel, May 13, 2002,
at 118. Primary funding in Germany is 10% below the OECD average and upper-secondary funding 60% above,
leading Rau and others to advocate spending more on early education to address the deficiencies which arise later.
Id. See also, Kultusministerkonferenz (2001b), Auswertung der OECD-Studie “Education at a Glance”, durch
die Kultusministerkonferenz, Bonn: Kultusministerkonferenz, at 14-16.
– 30 –
Coupling this with a high level of concern about the slow start German children are getting in
school189 presents an opportunity for charter schools. In most American charter school programs,
including Indiana, funding is based on a state average per-pupil rate including students at all grade
levels. Although some adjustments are made for high-cost students such as students with special
needs or vocational students,190 the general effect is that excess from grants to school districts for
primary pupils has the effect of subsidizing higher costs for secondary pupils. Because the charter
grant is also generally a flat per pupil amount, this has in many cases, again including Indiana, led
to a high proportion of charter schools being established as primary schools. Such a formula in
Germany could be used to create incentives for the establishment of innovative programs in primary education, either as new charters, or by encouraging existing primary schools to convert to
charters and thus receive higher funding levels. Given that Hauptschule funding also is usually
below funding for Gymnasien, a funding differential for innovative Hauptschule, or broader
schools serving typical Hauptschule populations, could be implemented as an incentive. Such a
mechanism could serve as a way to gradually introduce funding parity between school types and
to avoid or forestall potentially devastating cuts to Gymnasium budgets.
Some differential funding should remain in this system – for example additional funds for
special education students. This would be necessary to address the concern that school choice
proposals generally and also FOCJs run the risk of “cream skimming” the most desirable pupils,
taxpayers or members.191 In addition, some regulation of ethnic diversity within a school might
be needed to prevent the establishment of charter schools for the German-born, in order to escape
from traditional public schools with high immigrant populations. Such regulation could also take
the form of financial incentives, with reduced subvention for schools that depart too significantly
from the local demographic profile. Since charter schools involve aspects of both market and
regulated systems, they may possess an important advantage over a voucher scheme that does not
introduce reforms to education supply, or at a minimum to the regulation of education supply,
since educational oversight by a state entity probably is still contemplated. There is concern that
charter schools may lead to increased segregation, but interestingly, it is often the minority students who migrate to the charter schools, leaving the remaining public school population more
homogenous.192
As noted earlier, decentralization programs should work better if accompanied by incentives. Charter schools and German public-private education partnerships, such as Selbstständige
Schule and the Club of Rome Schools, differ in a critical way from a Schulprogramm approach
because the charter schools would be introduced as new alternatives to existing schools, and thus
create these incentives for change. One drawback of the current Schulprogramm approach favored by Hamburg and some other Bundesländer is that there is no pressure on existing schools to
actually participate.193 Some proactive schools clearly will improve their offerings, but some also
will not. At the opposite extreme are the problems created by simply lifting the school bounda189
190
191
192
193
Id; see also Schümer, Tillmann & Weiß (2002) at 205; Klaus-Jürgen Tillmann & Ulrich Meier (2001) “Schule,
Familie und Freunde – Erfahrungen von Schülerinnen und Schülern in Deutschland,” in PISA 2000, 468-505, at
475.
Because of the already wide breadth of the topic, this paper has not addressed issues of vocational education related to the duales System of schooling coupled with apprenticeship utilized in Germany, but has instead focused
on general education. However, particularly with regard to the Hauptschule, the involvement of companies in
charter schools, such as Marriott’s involvement in Washington, DC (see DC Public Charter School Resource Center, www.dcchartercenter.org for more information) could fit nicely into the duales System.
See Frey & Eichenberger (1999) at 34; Miron & Nelson (2002) at 63.
See “Figures raise diversity question” Indianapolis Star, August 8, 2002.
This is no less true in the United States. Indianapolis Public Schools instituted a “Select Schools” program in
1994, but terminated it only 3 years later because of low parent interest. See Kelly Bently (2001) “Education and
Politics in the 21st Century City: A View from the School Board,” in Richtie & Kennedy (2001) 251-268, at 258.
– 31 –
ries, as Hamburg did for the 2002-03 school year. Although some parents were able to take advantage of schools closer to their place of employment, others saw their children turned away from
neighborhood schools. Since there is no evidence that educational offerings improved as a result
of this reform, it may represent only an increased convenience for some parents at the expense of
others.194 Requiring schools that wish to avoid catchment requirements to offer something different, and thus also requiring parents to avoid catchment requirements only in the name of a diverse
educational offering would do more to create incentives for educational innovation. In addition,
the threat of closure for these new schools would also create an incentive for them to be administered in ways that clearly demonstrated innovation and improvement. It is a critical part of successful charter school programs that unsuccessful schools may be, and actually are, closed.195
Since falling enrollments are likely to require significant school closures in Germany over the
next decade, it makes more sense for these closures to be based on some form of accountability
process which improves overall educational quality, than to have no standards for closure and
leave the decision entirely to the political process.
The charter concept is a school choice concept that works already within the existing educational structure in the United States and potentially within Germany’s as well. It requires both
authorization from above and initiative from below, and interest from educators and parents. Because it requires these multiple constituencies, an individual charter school will not be established
if all constituencies are not supportive. This is unlike a voucher program, which could easily be
implemented by giving parents vouchers when there is still no meaningful choice between providers. A charter program can be implemented gradually over time, as additional capacity becomes
available. Even the rather radical concept of FOCJs can be implemented in stages,196 so there is no
reason that school choice in Germany should be any different.
Clearly, some words of caution are also in order. The most distinctive difference setting
apart the German educational system from other educational systems is the dreigliedriges tracking
system that divides secondary students into 3 different tracks. This system inhibits competition to
some degree because it divides the student population into three smaller groups, meaning the critical mass for establishing a competing school is less likely to be present in smaller communities
than it would be under a unified high school system. The dreigliedriges system can have more
pernicious effects as well, if choice leads students to flee the weaker schools for the stronger ones
(presumably Gymnasien). There is significant evidence that this is already occurring, as the
Hauptschule is increasingly seen as providing an inadequate education.197 Enrollments in the
Hauptschule have declined from over 60% of all secondary students in 1960, to 36% in the mid1980s to less than a quarter in the late 1990s,198 and it has been argued that a significant contributing factor to this decline has been through school choice by parents of the top Hauptschule students choosing Realschule instead.199 The PISA study revealed that Germany had the most highly
segregated schools by both ability level and social status,200 so social stratification must be combated in any program that is implemented. Reformers implementing a charter school program
194
195
196
197
198
199
200
See “Protest gegen Grundschultourismus,” Hamburger Abendblatt, May 6, 2002.
Author’s interview with David Harris, September 25, 2002.
Frey & Eichenberger (1999) at 32-33.
See Uschi Backes-Gellner & Heiko Weckmüller (1998), “Ist das Ende der Hauptschule aufzuhalten? Ein informations-ökonomischer Beitrag zur Wirkung alternativer Schulregulierungsstrategien auf das Schulnachfrageverhalten,” in Robert K. von Weizsäcker (ed.), Deregulierung und Finanzierung des Bildungswesens, Berlin: Duncker &
Humblot, at 49-77.
Weiß & Steinert (2001) at 431.
Gellner & Weckmüller (1998).
Baumert & Schümer (2001b) at 454; Jürgen Baumert & Gundel Schümer (2001a), “Familiäre Lebensverhältnisse,
Bildungsbeteiligung und Kompetenzerwerb,” in PISA 2000 – Basiskompetenzen von Schülerinnen und Schülern
im internationalen Vergleich (Deutsches PISA-Konsortium, eds.), 323-407, at 351-360.
– 32 –
within this environment would need to be cautious to strike the proper balance between healthy
competition between schools within the same academic track and destructive cream skimming
from one school type to another. Competition should not be overly constrained, however, because
a particularly effective Gymnasial curriculum may be able to educate students who would be
tracked into a Realschule or even Hauptschule under a more traditional system.
Another potential barrier is the corporatist approach to decision-making found in German
public policy circles. The nature of German federalism, and German society in general is marked
by cooperative decision-making through a high level of consensus. Most school reforms have
been pursued along these lines as well. For example, even the Schulkonferenz reforms were initially questioned as impinging on democracy by assuming some of the authority over curriculum
development traditionally exercised by the Kultusministerkonferenz.201 Reforms relying on market-mechanisms are likely to be seen as even more inconsistent with these goals. However, charter schools, because they require the cultivation of multiple accountability relationships, including
well-designed governmental standards, may be the least threatening to this cooperative culture.
It may also be difficult to inject competition into the system through multiple chartering
authorities, as is seen in the United States with universities, cities and even other school districts
establishing schools to compete with existing school systems. In Germany, the Länder have primary authority over educational policy, and local authorities are generally unitary in nature, meaning that all governmental functions are performed by different departments of the same governmental unit. This makes it harder to foster inter-governmental competition like that created by
charter schools. However, if the state level authorities were to reinterpret their function to be one
more of regulation than operation, and left questions of provision to the communities and to private school sponsors, some of this concern could be overcome. This could be particularly true in
large cities such as Hamburg where the Schulbehörde could become a central chartering and standards agency, with most significant decisions (including curriculum) devolved to individual
school directors, who would “compete” with other schools in the city. Given the wide range of
different chartering programs in the United States, there should be structural forms that best approximate German structures. For example, Washington, DC, which is the closest American analog to the German city-states, has a very active charter schools program managed by a charter
schools office, and there is a great deal of diversity from state to state with regard to the independence of local schools from their city or town and from the state. To minimize concerns about
“unbridled market capitalism” German authorities considering charter-school-like programs
should also look very carefully at the different American approaches to dealing with education
management organizations.
V.
CONCLUSION
Are charter schools a viable reform proposal for Germany? was the initial question raised
in this paper. My – still tentative – answer at this point would be: they would appear to be at least
as suitable as many other market-type solutions, and may be more so because of the structural features of German education, such as the prevalence of the state in overseeing the system. Charter
school programs may be more worthy of German interest than vouchers, or at least warranting
consideration as an element of a potential voucher program. Even if a voucher program were implemented in Germany, it would likely operate much as charter schools do in the United States,
since the German private school sector is so heavily regulated by the state already.
201
Lambert (1994) at 264; Max-Emanuel Geis (1998) “Möglichkeiten und Grenzen schulischer Partizipationsregelungen am Beispiel der sogenannten Schulkonferenz,” in Jach & Jenkner, eds., 31-50, at 39-41.
– 33 –
In terms of institutional economic theory, charter schools make sense. They introduce
market mechanisms – however through a quasi-market, which is still subject to a fair degree of
public control. Furthermore, although not a pure-FOCJ as contemplated by Frey and Eichenberger, or the true collective of interests contemplated by economists generally, they allow the delegation of supervising educational quality from voters generally to parents, without totally severing
the public nature of education. By relying on parents to serve as their agents, voters are cutting
through multiple layers of principal-agent problems, and helping to subvert attempts by an entrenched bureaucracy to protect its position. By making school managers accountable to parents
for results, the voters benefit through a better use of their education funds.
From an anti-market view, the concept of competing schools may seem too harsh, but in
an environment of falling enrollments, the need to rationalize some capacity in the school system
is going to remain acute. Some criteria for making these rationalization decisions will need to be
developed. If school autonomy really is to be developed bottom-up, as Bastian argues it must,202
then there need to be incentives in place to convince school directors and teachers that developing
strong programs has value. If schools are closed simply according to the age of their buildings or
geography, much of the incentive to pursue reform will be lost. Charter schools provide a means
to introduce these incentives gradually and with minimal disruption of German school culture, by
building on the principle of Schulautonomie already in place.
As previously noted, although there seems to have been little cross-fertilization of the
charter school concept into German education reform circles, opportunities to encourage such a
dialogue do exist and could be pursued more vigorously. A logical starting point is the efforts of
the Bertelsmann Foundation and the Club of Rome discussed earlier. The Club of Rome school
concept in particular bears many similarities to the efforts of educational entrepreneurs to found
charter schools in the United States, and the project director for the Club of Rome schools project
has expressed a high degree of interest in the charter schools concept. Some form of cooperation
between the Club of Rome and its partners in Germany and charter school supporters in the
United States could be quite fruitful. I am currently preparing such a proposal for the Körber
Foundation’s “USable” competition for importing American reform ideas into Germany, but other
sponsors and avenues for cooperation could also be pursued. The work of the Bertelsmann Foundation on Selbstständige Schule might be more closely aligned with the work of American reformers developing school advisory councils, since these bodies seem to be more highly developed in Germany generally, and in the Selbstständige Schule program in particular. Discussions
with education officials in Massachusetts might be particularly interesting, because this state has
both a strong charter school program, and a relative well-established school council program.
In any event, increased coordination and cooperation between educational reformers on
both sides of the Atlantic would be beneficial to cross-cultural understanding, and possibly also
yield improvements to both systems. Although an initial overview of the German and American
educational systems leaves one primarily with impressions of the differences, longer and deeper
consideration reveals similarities and areas of potential convergence. Focusing on these areas of
convergence allows a for comparative policy analysis that may be quite productive.
202
Bastian (1998) at 23.
– 34 –
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“Autonomie Konkret” (1996) Pädagogik 96/1.
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AUTHOR’S COMMUNICATIONS
Interview of Axel Beyer, Project Director, Club of Rome Schule Project, Hamburg, Germany July
18, 2002.
Interview of Axel Beyer, Project Director, Club of Rome Schule Project, Hamburg, Germany June
25, 2002.
E-mail from William A. Fischel, April 2, 2002
Interview of David Harris, Director, Mayor’s Office of Charter Schools, City of Indianapolis, Indianapolis, Indiana, September 25, 2002.
Interview of Hermann Lange, Staatsrat, Behörde für Bildung und Sport, Hamburg, January 29,
2002
Interview of Dietrich Lemke, Abteilungsleiter, Abteilung für Planung und Steuerung, Hamburger
Behörde für Bildung und Sport, Hamburg, February 27, 2002.
Interview of Norbert Maritzen, Leiter, Unterabteilung für Schulentwicklung, Schulforschung, Evaluation und Entwicklung von Konzepten der Lehrerbildung, Amt für Schule, Hamburg, February 13, 2002.
Interview of Ingrid Messer, Bezirksregierung Lüneburg, Lüneburg, July 15, 2002.
Telephone conversation with Johann Peter Vogel, June 24, 2002.
Interview of Johann Peter Vogel, Berlin, April 5, 2002.
Interview of Sybille Volkholz, Heinrich-Böll Stiftung, Berlin, July 3, 2002.
E-mail from Katrin Weisker, Referentin, Selbstständige Schule Düsseldorf, Bertelsmann Stiftung,
August 27, 2002.
– 43 –
DISKUSSIONSSCHRIFTEN AUS DEM INSTITUT FÜR FINANZWISSENSCHAFT
DER UNIVERSITÄT HAMBURG
Nr.
67/2003
Nr.
66/2002
Nr.
Nr.
Nr.
65/2002
64/2001
63/2001
Nr.
62/2000
Nr.
61/2000
Nr.
60/1998
Nr.
59/1998
Nr.
58/1998
Nr.
57/1998
Nr.
Nr.
Nr.
Nr.
56/1998
55/1998
54/1998
53/1998
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52/1998
Nr.
51/1998
Nr.
50/1998
Nr.
49/1997
Nr.
48/1997
Nr.
47/1997
Timothy A. Brooks Are Charter Schools a Good Fit for Germany?
– An Institutional Economic Contribution to Recent Discussions on
Comparative School Reform in Germany and the US –
Ingolf Meyer Larsen: Privatization of Juvenile Penal Administration An Economic Perspective
Birger Nerré: Tax Culture Shock in Japan
Birger Nerré: Steuerreformen und Steuerkultur in Russland
Gunther H. Engelhardt und Klaus Heinemann: Sport and the Welfare
State in Germany
Sonja Scheffler und Horst Hegmann: Zur Integration der Marktversagensgründe über Musgraves Mischgutkonzeption
Horst Hegmann: Conventionalist Foundations for Collective Action in
a Culturally Fragmented Setting
Christian Scheer: Beiträge zur Biographie der deutschen wirtschaftswissenschaftlichen Emigration 1933 – 1945: Rudolf Grabower, Otto
Freiherr v. Mering, Theodor Plaut, Eduard Rosenbaum, Oswald
Schneider, Carl v. Tyszka
Gunther H. Engelhardt, Horst Hegmann und Christoph Schweizer:
Neues Steuerungsmodell und Globalbudgetierung in Hamburg –
Ergebnisse eines Projektseminars zum Thema
Gunther H. Engelhardt: “Subsidiarity” and the “Principle of Fiscal
Equivalence” (Olson) in Providing Services of General (Economic)
Interest: Their Relevance for Social and Territorial Cohesion within
the European Union
Gunther H. Engelhardt und Sandra Greiner: Ressourcenaktivierung für
Nachhaltigkeit: Globale Probleme – Lokale Agenda
Horst Hegmann: Fragmentiertes Wissen und Ordnungstheorie
Thorsten Giersch: Rauch ohne Feuer? – Die Pigou-Coase-Kontroverse
Thorsten Giersch: On Defining and Analyzing Public Goods
Horst Hegmann: Wissenssoziologische Aspekte der Verfassungsökonomik. Das Beispiel der Nachhaltigkeitsdebatte
Horst Hegmann: Unternehmerisches Handeln in einer sozial ausdifferenzierten Gesellschaft
Horst Hegmann: Normativer Individualismus, konstitutioneller Fortschritt und die Rolle der Kultur
Erika Spiegel: Konsensfindung und Konfliktbewältigung durch neue
Formen informeller Verhandlungsführung und Bürgerbeteiligung
Gunther H. Engelhardt: Intergovernmental (Fiscal) Relations in Germany – A Case for “Reinventing ...”?
Gunther H. Engelhardt: Innere Sicherheit und Police-Private-Partnership aus ökonomischer Sicht
Horst Hegmann: Sind Individuen der adäquate Forschungsgegenstand
der Sozialwissenschaften?
– 44 –
Nr.
46/1997
Nr.
45/1997
Nr.
Nr.
44/1997
43/1996
Nr.
42/1996
Nr.
41/1996
Nr.
40/1996/7/8
Nr.
39/1996
Nr.
38/1995
Nr.
37/1995
Nr.
36/1992
Nr.
35/1990
Nr.
34/1990
Nr.
33/1990
Nr.
32/1990
Nr.
Nr.
31/1989
30/1989
Nr.
29/1988
Nr.
28/1988
Nr.
27/1988
Matthias Funk: Finanzwissenschaftliche Aspekte des Streits um die
Einführung einer Berufsarmee
Horst Hegmann: Ökonomische Effizienz versus universaler Gerechtigkeitsbegriff
Horst Hegmann: Poverty, Power, and Constitutional Choice
Christian Inatowitz: “Reinventing Government” – Die Thesen Osborne/
Gaeblers in institutionenökonomischer Interpretation
Peter Dörsam: Politische Ökonomie Kommunaler Leasingverträge –
Eine Fallstudie
Horst Hegmann: Differing World Views and Collective Action – The
Case of Research
Gunther H. Engelhardt: TRANSFORM – Forschungsschwerpunkte und
Kooperationsinteressen im Arbeitsbereich “Finanzpolitik” des Instituts
für Finanzwissenschaft (2. Aufl.)
Horst Hegmann: Spielräume unternehmerischen Handelns zwischen
Innovation und Standardisierung
Gunther H. Engelhardt: Großstadtregionen und ihre Verwaltung: Problemkonzentration und Katalysatoren öffentlichen Aufgabenwandels
Gunther H. Engelhardt: “Symbiotische Arrangements” und die Versorgungsorganisation öffentlicher Aufgabenerfüllung – Anmerkungen zur
Institutionenökonomik einer biologischen Metapher mit einigen Anwendungsbeispielen aus dem Überschneidungsfeld kommunaler
Arbeitsmarkt- und Sozialpolitik
Gunther H. Engelhardt: Kommunale Finanzpolitik im Zeichen der
Wiedervereinigung
Gunther H. Engelhardt: Die Instrumentalthese in der wirtschaftswissenschaftlichen Diskussion – Ansätze einer institutionenökonomischen Reinterpretation
Peter Bartsch und Georg Tolkemitt: A neo-classical growth model with
government activity – Some simple analytics
Georg Tolkemitt: Einige makroökonomische Konsequenzen der Konsumbesteuerung
Martin Rosenfeld: Zur finanzwissenschaftlichen Analyse der Entwicklung öffentlicher Aufgaben-Strukturen – Bericht über ein Forschungsprojekt
Gunther H. Engelhardt: Imperialismus der Ökonomie?
Gunther H. Engelhardt: The Economics of Public Goods: Basic Concepts and Institutional Perspectives for Comparative Systems Analyses
Martin Rosenfeld: Hat die Dezentralisierung öffentlicher Aufgabenerfüllung eine Chance? – Ein Versuch der Integration und Erweiterung
vorliegender Hypothesen zum “Popitzschen Gesetz” am Beispiel der
Entwicklung in der Bundesrepublik Deutschland
Gunther H. Engelhardt und Eberhard K. Seifert: Das gesellschaftlich
Notwendige finanzierbar machen
Peter Bartsch und Henning Probst: Zur Berücksichtigung von Bedarfselementen im Länderfinanzausgleich – Ein Beitrag zur Überwindung
der Stadtstaatenproblematik
– 45 –
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26/1987
Nr.
25/1987
Nr.
24/1987
Nr.
Nr.
23/1986
22/1985
Nr.
21/1985
Nr.
20/1985
Nr.
19/1984
Nr.
18/1984
Nr.
17/1984
Nr.
16/1984
Nr.
15/1984
Nr.
14/1984
Nr.
13/1984
Nr.
12/1983
Nr.
11/1980
Nr.
10/1979
Jörn Brossmann: Der Wasserpfennig – Finanzwissenschaftliche Überlegungen zu einem neuen umweltpolitischen Konzept
Gunther H. Engelhardt: Ansätze zur Integration verwaltungs- und
finanzwissenschaftlicher Forschung und Lehre im Institut für Finanzwissenschaft
Gunther H. Engelhardt: Finanzwissenschaftliche Ansätze zur Analyse
und Steuerung interorganisatorischer Beziehungen in der Verwaltung
Gunther H. Engelhardt: Bezirksreform in Hamburg?
Birger Priddat und Martin Rosenfeld: Die Hamburger Finanzwissenschaft in den Jahren 1933 -1945
Gunther H. Engelhardt: Programmbudgetierung und Budgetkonsolidierung
Gunther H. Engelhardt und Mitarbeiter: Bürgerpräferenzen und Konsolidierungspolitik – Anregungen und Materialien für eine finanzwissenschaftliche Projektstudieneinheit
Martin Rosenfeld: Shifts of Expenditures between Counties and Local
Units in Lower Saxony as a Result of Recent “Functional Reforms”: A
New Approach to Operationalize, Measure, and Explain Fiscal (De-)
Centralization
Gunther H. Engelhardt, Frank Nullmeier, Birger Priddat, Martin
Rosenfeld und Eberhard K. Seifert: Öffentliche Finanzen im “Post
Welfare State (PWS)”, Beitrag zur Konferenz des European Centre for
Work and Society: “The Future of the Welfare State” vom 19. 21.12.1984 in Maastricht/NL
Gunther H. Engelhardt: Approaches to Fiscal Decentralization in a
Metropolis: Recent Discussions on District Reform in the City State of
Hamburg
Birger Priddat: Ist das “laisser faire”-Prinzip ein Prinzip des NichtHandelns? Über einen chinesischen Einfluß in Quenays “Despôtisme de
la Chine” auf das physiokratische Denken
Werner Stark: Die protestantische Ethik und der Verfall des Kapitalismus
Frank Nullmeier, Birger Priddat, Martin Rosenfeld, Eyüp Saltik und
Volker Schulz: Zur Geschichte des Instituts für Finanzwissenschaft und
der finanzwissenschaftlichen Forschung und Lehre an der Universität
Hamburg
Gunther H. Engelhardt: Zum Problem der Politikentflechtung und Aufgabendezentralisierung in der Freien und Hansestadt Hamburg: Das Beispiel der Bebauungsplanung
Birger Priddat: Das Verhältnis von Ökonomie und Natur. Eine erste
Skizze zu einem unbekannteren Aspekt der Theoriegeschichte
Gunther H. Engelhardt: The Imperfect Political Competition in a Representative Democracy and the Supply of Public Goods
Martin Rosenfeld: Funktionale Verwaltungsreformen und das Popitzsche “Gesetz von der Anziehungskraft des übergeordneten Etats” – Ein
Forschungsdesign
– 46 –
Nr.
9/1979
Nr.
8/1978
Nr.
7/1978
Nr.
6/1978
Nr.
5/1977
Nr.
Nr.
4/1976
3/1976
Nr.
2/1976
Nr.
1/1976
Uwe Sander: Variation der steuerlichen Abschreibungsmöglichkeiten
gemäß § 26 StWG als Instrument der Stabilitätspolitik
Dieter Gnahs und Rainer Janneck: Das Problem des illegalen Steuerwiderstandes. Ein Versuch der Integration verschiedener Erklärungsansätze
Dieter Schütt: Bemerkungen zu einigen Modellen zyklischen Wachstums
Peter Busse: Grundkonzeption der Wohngeldförderung und Vorschläge
zur Reform
Gunther H. Engelhardt: Zur logischen Struktur von Bewertungssystemen für den öffentlichen Dienst
Hans G. Nutzinger: Self-Management in the Public Sector
Volkmar G. von Obstfelder: Werden heute Reformen unterlassen, so
verursachen wir morgen höhere Ausgaben. Aspekte einer modernen
Finanzpolitik, in der gesellschaftliche Entwicklungen berücksichtigt
werden
Cay Folkers: Zur optimalen Bestimmung staatlicher Eventualbudgets
mit Hilfe der linearen Programmierung
Gunther H. Engelhardt: Wissenschaftliche Beratung der Wirtschaftsund Finanzpolitik in politökonomischer Perspektive. Ein Forschungskonzept
– 47 –

are charter schools a good fit for germany?

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