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Print Vol. 103, Issue 6


Preferencing Educational Choice: The Constitutional Limits

Derek W. Black

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15 Sep 2018

Rapidly expanding charter and voucher programs are es­ tablishing a new education paradigm in which access to tradi­ tional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trqjectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to pub­ lic education embedded in allfijty state constitutions.

Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past argu­ ments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they en­ danger statewide education systems. Unsurprisingly, litiga­tion and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a re.framed theory, several recentlyfiled lawsuits are likely to suffer the same fate.

This Article does not challenge the general constitutional­ ity of choice programs. Instead, the Article identifies two limi­tations that state constitutional rights to education place on choice policy. The first limitation is that states cannot prefer­ence private choice programs over public education. This con­ clusion flows from the fact that most state constitutions mandate public education as a first-order right for their citi­ zens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.

The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide ade­ quate and equitable public schools. Any state policy that de­ prives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, strati.fying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct con­ stitutional violation.

To read more, click here: Preferencing Educational Choice: The Constitutional Limit.