A school choice nightmare: Families getting government funding to switch from public to private school put their rights at risk

The harrowing story of a Maine family shows the potential perils families face when they transfer to privately run schools that are less subject to government oversight.

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SOURCEOur Schools

This article was produced by Our Schools. Jeff Bryant is a writing fellow and chief correspondent for Our Schools. He is a communications consultant, freelance writer, advocacy journalist, and director of the Education Opportunity Network, a strategy and messaging center for progressive education policy. His award-winning commentary and reporting routinely appear in prominent online news outlets, and he speaks frequently at national events about public education policy. Follow him on Twitter @jeffbcdm.

“I am the type of parent who always made sure my kids had the good teachers and always took the right classes,” said Esther Kempthorne in an interview with Our Schools. So, in 2014, when she moved with her husband and two daughters to their new home in Washington County, Maine, in a bucolic corner of the state, near the Canadian border, she made it a top priority to find a school that would be the right educational fit for their children.

“We settled in Washington County hoping to give our children the experience of attending one high school, making lasting friendships, and finally putting down some roots,” said Esther’s husband, Nathan, whose career in the military had sent the Kempthorne family traveling the world, changing schools more than 20 times in 17 years. “Both of our children were born on military bases while I was on active duty with the U.S. Navy and the U.S. Air Force,” said Nathan, whose role in military intelligence often meant that he was deployed to high-risk assignments in war zones.

“We said that when we got to Maine, we weren’t going to keep bouncing from school to school,” said Esther.

But after some firsthand experience with the education programs provided by the local public schools, the Kempthornes decided to investigate other options the state offers. One of those options was the state’s provision that allows parents who live in a district that doesn’t have a school matching their child’s grade level the choice to leave the public system and transfer their children to private schools, with the “home” public school district picking up the cost of tuition and transportation, subject to state allowance.

Because the rural district the Kempthornes lived in did not have a high school, they took advantage of that option to enroll their daughters—at taxpayer expense—in Washington Academy, an elite private school founded in 1792 that offers a college track curriculum and access to classes taught by faculty members from a nearby university.

Their decision to leave the public school system for Washington Academy seemed all the better when Esther, a naturalized U.S. citizen born in Mexico, got a full-time job teaching Spanish at the school.

Thinking back on how the Kempthorne family negotiated the school choice landscape in Maine, Nathan recalled, “I thought we were finally going to be okay.”

But the Kempthornes weren’t okay. Far from it, in 2021, the Kempthornes found themselves in the front seat of their car while they were traveling in another state, using Nathan’s iPhone to call in via Zoom and provide testimony to a Maine legislative committee on why Washington Academy, and other schools like it, pose significant threats to families like theirs and how the state needs to more heavily regulate privately operated schools that get taxpayer funding.

Fighting through tears, they spoke of “racism” and “bullying” at Washington Academy and the school administration’s unwillingness to acknowledge and address the school’s culture.

In his written testimony, Nathan wrote of “a disturbing pattern of systemic racism and institutionalized oppression, harassment, and bullying behavior based on race, ethnicity, country of origin, gender, and sexual orientation that has occurred for years at [Washington Academy].”In her letter of resignation from the school, presented to the committee, Esther wrote of a school environment where she and her daughters, who identify as Hispanic, experienced “racist, anti-immigrant sentiments.” She wrote, “As the racist anti-immigrant rhetoric became more mainstream, we had to teach our daughters how to defend themselves without our intervention, and they did. However, such self-defense has been exhausting and stressful for my children, and it should not be their responsibility to constantly deflect harassment; rather they should be guaranteed a safe educational environment by school leaders.”

Although their daughters eventually graduated from Washington Academy and went on to college, the family became totally uprooted because of their experience at the school. Nine years after building their dream home in rural Maine, they now find themselves living in an apartment in New York City, embroiled in a years-long battle with Washington Academy and Maine officials, which has absorbed countless hours of their time and thousands of dollars of their life savings.

Esther has been unable to reenter the classroom as a full-time teacher due to the lingering effects of the traumatic experiences she had from teaching at Washington Academy, and both parents and daughters speak of long-term adverse mental health effects stemming from the years they spent at the school.

“We sold everything,” Nathan said in his spoken testimony to the committee. “We lost everything in your state and we left for our safety. Our children are completely traumatized. They lost all their friends.”

The Kempthornes’ story about the consequences of leaving the public education system for a private school is a cautionary tale about what can happen when a system designed to provide parents with taxpayer-supported private school options fails to consider the potential risks when students and parents transfer to these schools that are less subject to government oversight.

Their story is even more significant given the current trend across the country where states have increasingly been adopting charter schools, voucher programs, education savings accounts, “backpack funding,” and other so-called school choice options that use taxpayer money to fund alternatives to the public system.

These options are favored by politicians on the right and left, and, at least one state, Arizona, has a voucher program called the Empowerment Scholarship Account Program, which every student in the state is eligible to tap.

This rapid expansion of school choice options is taking place even though there is ample anecdotal evidence and a growing body of research showing that parents in a school choice marketplace often make questionable choices they sometimes come to regret.

As the Kempthornes came to learn, private education providers that are not governed within the public domain pose legal problems that parents often either don’t know about or don’t understand, and local and state government officials often either have no authority to intercede on parents’ behalf or are reluctant to assert what little authority they do have.

The Kempthorne family’s saga, which is still enduring, is a sharp counterpoint to advocates who promote school choice as a simplistic solution for families without acknowledging that transferring taxpayer-funded education services from the public to the private realm will actually complicate parents’ and students’ lives.

‘Kids just being kids’

The first time Esther became fully aware of the racist culture simmering below the privileged veneer at Washington Academy was when, a week after Donald Trump had won the 2016 presidential election, a student stood up in her class and asked when she would be “going home,” which she took to mean as being a reference to her Mexican heritage.

When she described the incident to her family, her story seemed to trigger her daughters to recount how frequently their peers had told them to “go back to where you came from” and to make references to “build the wall” and other anti-immigrant rhetoric from the Trump campaign. 

“It got really weird really fast after Trump got elected,” Nathan told Our Schools. “What had been less overt got more direct.”

“Because I am from Mexico and was the only Hispanic and [adult] of color in the school, I knew why this was happening,” Esther said. While she understood that “impressionable” teenagers might “parrot” what powerful influencers like Trump say, she felt adults in the school had a responsibility to address the situation. But when she started talking to her colleagues about it, her fellow teachers and school staff members dismissed her concerns with comments about “kids just being kids” and saying that the behaviors were just the “latest fad” that would end soon. Some chided her for being “political.”

“This was painful for me because I was, after all, the only person of color [on the staff] and the only one bringing up the issue,” Esther said.

In 2019, after a shooting in an El Paso, Texas, Walmart, in which victims were targeted for their Hispanic heritage, the Kempthornes asked to talk to Washington Academy administrators and faculty about the treatment of nonwhite students in the school.

Esther suggested that there should be a school-wide buildup to national events related to race, such as National Hispanic Heritage Month and Black History Month, but it became apparent to her that if that were to happen, she would have to lead it, and that made her feel vulnerable.

While administrators pledged to address the issue of racism in the school, it became apparent to the Kempthornes that some school staff were reluctant to admit there was a problem. Ultimately, the Kempthornes maintain little was done other than to mention the issue during a student assembly.

“I felt very alone,” Esther said.

Noose in the classroom

Matters took a decidedly scarier turn in March 2020, when Esther found a noose hanging from a window shade in her classroom. Initially, she didn’t know what it meant.

“In Mexico, a noose is a confession of suicidal thoughts,” she said, so she wondered if its presence was related to the mental health of one of her students. But her school was about to go remote due to COVID, and she didn’t mention the incident to school administrators or anyone else.

It was only after she heard about a news story from Deer Isle, Maine, about a noose discovered hanging from a utility line, that she mentioned the incident to her husband who told her about the racist threat the symbol was meant to convey. That made her recall recent incidents in which students brought Confederate flags to school, and she put the two things together.

The Kempthornes’ youngest daughter, Natalia (now Natalia Kempthorne-Curiel), asked current and former Washington Academy students to send her their stories about incidents of discrimination occurring at the school, which she compiled and sent in a letter to the school’s administration.

Several anecdotes mentioned in Natalia’s letter stem from a Black Lives Matter rally that students helped organize in which, “Students and former students at the rally lined up their trucks with big American flags waving in the back and drove past the Black Lives Matter protest multiple times yelling ‘go home,’ flipping them off, and playing ‘Dixie’ loudly over their truck horn[s].”

“Multiple students reported that white students routinely flew Confederate flags on school grounds,” read another entry in the letter, “with no repercussions.”

International students at the academy seem to have been a particular target for abuse, according to several comments included in the letter, and “were afraid to report acts of racism or xenophobia because they feared retaliation, and because the perpetrators would not be held accountable for their actions.”

In addition to her letter, Natalia also posted an online petition accusing Washington Academy and its board of trustees of creating “a systemic and institutionalized culture of discrimination within our school” and calling for the school administration to take several steps to address “harassment and discrimination” in the school.

Feeling disappointed in the school’s response to their grievances, the Kempthornes embarked on an extensive campaign to contact a broad range of officials and organizations outside of the school.

Local officials, many of whom had business and professional relationships with Washington Academy board members and administrators, were slow to respond to the family’s complaints or took no action at all. The Maine Education Association, the statewide union Esther had joined, claimed it was prevented from interceding on her behalf because the school is private.

Written appeals the family made to 19 members of state government—including a U.S. senator, a U.S. House representative, committee chairs in the Maine House and Senate, the Maine Department of Education commissioner, the Maine attorney general, and the governor—to request support received responses that ranged from merely officious to sympathetic, but failed to result in any concrete actions.

The state legislative hearing that the Kempthornes provided testimony to was so hastily thrown together that Nathan and Esther weren’t able to schedule their appearances in advance, so they had to call from the front seat of their car, while they were traveling out-of-state.

Even though Maine has a statutory provision that prohibits discrimination, the Maine Human Rights Commission (MHRC), which is responsible for enforcing it, proved to be reluctant to apply its regulatory authority to a prestigious private academy. (In an apparent conflict of interest, at the time the Kempthornes were making their appeals, Arnold Clark was chair of the MHRC and an attorney working out of an office from the same address as attorney Dennis Mahar, who serves on the Washington Academy board of trustees and once served as the board’s president, according to Nathan.)

The Kempthornes hired an attorney for their case, but the legal fees eventually exceeded their wherewithal.

Even their closest friends in the community demurred from speaking out on their behalf.

‘He really didn’t want to talk with us’

With their oldest daughter already having moved away from home and attending college, and Natalia eligible for early graduation from Washington Academy, the Kempthornes began to think about moving away. When close acquaintances advised them to leave for safety reasons it seemed to solidify their decision and in August 2020, they put their house up for sale and left Maine.

But their contempt for Washington Academy remains. “Neither as a parent or a teacher did I ever get a [written communication] from Washington Academy’s Head of School Judson McBrine or Assistant Headmaster Tim Reynolds [now retired] that they were aware of the open discrimination and were taking steps to address it,” said Esther. It wasn’t until after her resignation, in July 2020, and more than a month after her daughter Natalia had reported intense discrimination, that Esther received a short email from McBrine to discuss her resignation letter.

In September 2020, a local television station reported that at least one of Nathan’s letters about the noose incident had prompted Washington County lawmakers to request the state attorney general to conduct an inquiry into the matter. McBrine is quoted as saying, “We will not tolerate racism at Washington Academy.”

In January 2021, local news outlet WGME reported that Washington Academy had hired an outside investigator to conduct an investigation about the noose incident. The investigation “could not substantiate the allegation, according to an attorney representing the school,” WGME reported.

The lawyer the school chose to conduct the investigation worked for Eaton Peabody in Bangor, which specializes in representing employers, not employees, according to its description of the firm’s experience in handling labor and employment cases. The investigating attorney, Sarah Newell, also represents employers, according to her legal profile, which spotlights her successful litigations, including that she “[s]uccessfully defended a disability discrimination case before the Maine Human Rights Commission,” and, “[s]uccessfully defended a nursing home in labor arbitration.”

Also, after the Kempthornes left Maine, in August 2020, Washington Academy announced in November 2020 that it had hired a firm to conduct an “equity audit” of the school, the results of which were posted on the school’s website in May 2021. To conduct the audit, the school hired Boston-based Carney Sandoe and Associates, a firm that, according to its website, works exclusively with “independent, private, boarding, and charter schools,” mostly on faculty recruitment and leadership searches.

According to the Kempthornes, no one from Carney Sandoe and Associates reached out for their input for the audit, but when Nathan heard of the audit, he contacted the firm’s diversity consultant at the time, Lawrence Alexander, who spoke briefly with Nathan, but never contacted Esther or Natalia.

“He really didn’t want to talk with us,” said Nathan.

‘I was not surprised’

Elizabeth Sprague first met Esther Kempthorne when a local advocacy group Sprague participated in invited Natalia to speak to the group about her environmental advocacy work at Washington Academy.

A few months after Natalia spoke to the group, Sprague came across an unsettling message on her social media feed from a follower who expressed feelings of being personally unsafe at work. In an exchange of messages that ensued, Sprague learned the follower was Esther, and the unsafe place was Washington Academy.

“When I found out it was Washington Academy, I was not surprised,” said Sprague. Other parents she knew had complained to her about the culture in the school. Two teachers at the school had spoken to her about feeling the need to self-censor their comments about the school’s culture because of religious fervor that was rife in the school, even though the school is officially nonsectarian.

Sprague, who grew up in the Washington County area and has family members who’ve lived there since the 1600s, said Washington Academy has long been regarded as an “aspiring” school. Sprague attended the school in her freshman year of high school, and she had a family member who taught there. “He was very evangelical,” she said, and “proselytized” students in the classroom, with, apparently, no interference from the school administration.Washington Academy is one of several Maine “town academies” that benefit from what’s known as “town tuitioning,” in which private schools receive public funding from districts that “tuition out” students to the schools rather than paying to educate them in their “home” district. These Maine academies had from 80.4 to 99.3 percent of their student enrollments funded with public dollars in the fiscal

year 2020-2021. Most of them also obtain additional income by operating expensive residential programs that enroll students, often from countries outside the U.S.

The practice of using town tuitioning programs as alternatives to providing public schools started in Vermont, according to Education Week, but has since spread to New Hampshire, Massachusetts, and Connecticut, as well as Maine.

Supporters of these programs call them a “model of educational choice,” according to Education Week, and although supporters of vouchers haven’t always held up town academies as their ideal, they’ve more recently been describing them as the “oldest school choice program in the nation” and calling for expanding them so that all students are eligible to attend the town academies.

But the rationale for having town academies and funding them with public money seems to no longer hold, if it ever did.

‘A common myth’

“A common myth is that town academies in New England exist in rural areas which have a scarcity of public schools due to the relatively low population density of families with school-aged children and a lack of funding to support district schools,” according to Bruce Baker, an education professor at the University of Miami in Florida. “But that’s not the reality.”

According to Baker, many of these schools started in the early 1800s, or earlier, as private secondary schools for their communities prior to the existence of public high schools “and in many cases,” prior to the creation of the nation’s system of public common schools. “Some, like Burr and Burton Academy in Manchester, Vermont, were originally funded by local businessmen,” he noted.

Given that origin, town academies that are in operation today are “holdovers,” according to Baker, “of what were once proxy public schools that never converted to district public schools,” although a few have, such as Bellows Free Academy in St. Albans, Vermont, which converted from private to public in 2008.

Contrary to the town academy narrative, some of the schools are in communities that have sufficient populations to educate school-aged children. For instance, New Bedford Academy in New Bedford, Massachusetts, is located in a city with a population exceeding 100,000, according to the 2021 U.S. census. Norwich Free Academy is located in Norwich, Connecticut, a community with a population of more than 40,000.

Also, the notion that town academies are needed in Maine because public schools are few and far between seems hardly the case. “The distances between publicly funded town academies and competing public high schools in Maine is often negligible,” Nathan Kempthorne wrote in an email, pointing out that the distance between Washington Academy and Machias Memorial High School in Machias is only 4.2 miles, and John Bapst Memorial High School, a town academy in Bangor, is only 2.5 miles from Bangor High School and 2.1 miles from Brewer High School.

Public schools in rural communities are quite commonplace. “More than 9.3 million—or nearly one in five students in the U.S.—attend a rural school,” according to a 2019 report by the Rural School and Community Trust. “This means that more students in the U.S. attend rural schools than in the nation’s 85 largest school districts combined.”

Whereas rural public schools are subject to the same government oversight that all public schools are subject to, that oversight does not extend to private schools, even when they get a substantial portion of their funding from the public.

“In private schools, students end up losing basic constitutional rights and essentially don’t have due process rights,” Todd DeMitchell told Our Schools. DeMitchell is a professor emeritus at the University of New Hampshire at Manchester who studies laws governing school policies and the impact of court cases on these policies.According to him, if the Kempthornes had their children enrolled in public schools they would have had access to certain rights protected by the U.S. Constitution, including Title 6, which addresses race, and Title 9, which addresses discrimination on the basis of sex. Washington Academy, being a private school, is exempt from these protections.

DeMitchell pointed to a 1987 decision by a federal court that ruled a private academy in New Hampshire had the right to fire a teacher who, contrary to school policy, grew a beard, because the school argued successfully that it was “not a state actor,” according to DeMitchell. That ruling’s logic has been extended to a potential 2023 U.S. Supreme Court case in which a North Carolina charter school is arguing that it has the right to require girl students to wear skirts at school because it also is not a state actor. (Charter schools are also privately operated schools that are funded almost exclusively with public money.)

Along with their problematic funding rationale, town academies also have issues with being truly diverse and inclusive schools. For instance, they’ve “long struggled” to serve students with disabilities, according to Baker. And the student populations of these town academies tend to be more white and affluent than their surrounding communities, with any purported claims of student diversity being largely due to their enrollments of international students in residential programs.

According to a 2017 report on Vermont’s town academies by ProPublica, “Of the almost 2,800 Vermonters who use publicly funded vouchers to go to private schools in state, 22.5 percent qualify for free or reduced price lunch, according to state education data. (The data excludes out-of-state private schools.) By contrast, 38.3 percent of public school students in Vermont have family incomes low enough to qualify them for the lunch discount.”

These tendencies toward serving select populations of students likely lead to problems with creating an inclusive school culture, as is noted in a letter from “community members” of the John Bapst Memorial High School town academy in Maine.

Much like Natalia’s letter to Washington Academy, the letter from the John Bapst community members provides numerous testimonials of incidents and school conditions that reflect racism, homophobia, transphobia, ableism, misogyny, and economic discrimination.

“Many of the issues being brought to light within this letter are rooted in the demographics of John Bapst,” the document states.

‘Did not do enough research’

“In hindsight, I clearly did not do enough research,” Nathan now admits. But is it really that simple?

Like most families, the Kempthornes feel they know what’s best for their children, including their education, but the couple perhaps seems especially amply prepared for that role.

Although Nathan had dropped out of high school, he joined the military and earned his GED, getting 96 percent of his credits while on active duty on base. He completed both his bachelor’s and master’s degrees using the GI Bill. “There was no way I was going to have a child and not have a college degree,” he said.

Esther received her bachelor’s degree in business administration from a university in Mexico and had frequently worked for the state department during their deployments. When she got part-time work in Maine, teaching Spanish in nearby Machias Memorial High School and Milbridge Elementary School, she seemed especially well positioned to research potential new schools for their children.

But after the Kempthornes enrolled their daughters in the local public school, it didn’t take long for them to realize their children were academically far ahead of their peers (Natalia skipped a grade in her elementary school). While the elementary school was “tolerable,” they were concerned their daughters would flounder in the local secondary schools.

Also, Esther and Nathan felt their daughters, who identified as Hispanic, would benefit from schools with a more racially diverse student population.

The reputations of the local secondary schools were not particularly sterling. Machias Memorial High School, where Esther taught, did not impress her, and a closer secondary school, Narraguagus Junior-Senior High School, was generally considered low performing among parents. Certainly, the reputations of those schools were not helped by the poor ratings they get on the popular school rating site Great Schools.

Also, the Kempthornes could not help but notice how under-resourced their local schools were.

According to an annual analysis of education funding compiled by the Education Law Center for the year 2022, Maine has an uneven track record in funding education. While the analysis gives the state a grade of “A” for the level of per-pupil revenue it provides to schools, compared to other states, it grades Maine an “F” for how the state distributes education funding to school districts with high levels of student poverty.

A similar school finance profile for 2019-2020 gives Maine’s financial commitment to schools 62 points out of a 100-point scale, but notes that while the state is “a high effort state” compared to other states, its current effort level is below its pre-recession (2006) level, and, “Educational opportunity in [Maine] is severely unequal.”

In addition to the funding disparities, the Kempthornes also noticed how much Maine’s public education policy emphasized career and technical education (CTE), a term recently coined to replace what’s traditionally been called vocational education. That emphasis is reflected in the state’s recent commitment of $25 million to a two-year initiative to fund students to get paid work experiences with employers. On the website of Machias Memorial High, the school’s CTE program is the only content area described under the heading of “academics.”

“We kind of panicked when we thought we’d have to move again because of subpar education,” Nathan recalled. Their commitment to move to Maine and build their dream home near a picturesque seashore had been years in the making. To finance the move, Nathan had taken more dangerous assignments for the higher pay, and the family had scrimped on expenses to save up for the construction of their new home.

Given their situation, it’s understandable why the Kempthornes would be attracted to a school like Washington Academy. According to Private School Review, “85 percent of graduates [of the school] go on to post-secondary programs, college, or university.” The school’s academic program ranges from “hands-on courses in marine technology and computer-aided design to AP classes in advanced math and literature to college courses taught by [Washington Academy] faculty and online through our university partners,” according to the school website.

Further, the school offered the more ethnically and racially diverse student body the Kempthornes wanted. Of its population of roughly 90-some boarding students—nearly a quarter of the roughly 400 student enrollment—most come from outside the U.S., according to the Kempthornes, primarily from China.

“When we toured Washington Academy,” Nathan recalled, “the differences in resources and course offerings between it and the local public schools were stark.”

And with the tuition being funded by the public, what families would turn that down?

‘Who really has the choice?’

In describing the reality of the school choice landscape the Kempthornes confronted in Maine, Nathan could be speaking for an increasing number of American families when he said, “Either you accept a system in which you have zero recourse to discrimination or you accept subpar education in a system in which you have at least some rights.”

What kind of choice is that?

Advocates for school choice prefer to ignore that question. “Their idea of an education free market is predicated on caveat emptor,” as Todd DeMitchell put it, “even if parents often don’t have the information at hand to make those kinds of decisions.”

While it’s hard to believe the Kempthornes should have known the situation they were walking into, it’s even harder to argue that they should have just accepted it.But in a school choice playing field that so unevenly advantages the education provider over the parent, the question becomes, “Who really has the choice, the parent or the school?” according to DeMitchell. “When a school has a particular kind of culture, who really has the choice? The school is effectively saying, We choose to allow you to be discriminated against. And that’s your choice?”

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Jeff Bryant is a writing fellow and chief correspondent for Our Schools, a project of the Independent Media Institute. He is a communications consultant, freelance writer, advocacy journalist, and director of the Education Opportunity Network, a strategy and messaging center for progressive education policy. His award-winning commentary and reporting routinely appear in prominent online news outlets, and he speaks frequently at national events about public education policy. Follow him on Twitter @jeffbcdm.

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