Key Points:
- The 2002 US Supreme Court decision in Zelman v. Simmons-Harris cleared away the most significant obstacle to the expansion of private school choice programs by ruling that the First Amendment’s establishment clause does not preclude faith-based schools from participating in private school choice programs.
- Private school choice programs raise other important legal questions, which fall into four categories: the scope of students’ rights to an education and parents’ rights to choose their children’s schools, state-constitutional obstacles to private school choice, the effect of laws governing racial integration and the inclusion of disabled students, and the religious-liberty implications of faith-based schools participating in such programs.
- The lack of clarity on these questions poses challenges, but also opportunities, for proponents of private school choice to scale existing programs and expand program options.
Executive Summary
Each year, more and more students in the United States use public funds to attend privately operated schools. While the vast majority of them are enrolled in charter schools, the number of students participating in private school choice programs has increased dramatically. At present, more than half of states have private school choice programs in place.
Until the United States Supreme Court’s landmark Zelman v. Simmons-Harris decision in 2002, the constitutionality of private school choice was in serious question, because a number of earlier precedents invalidated state efforts to support faith-based schools on federal establishment clause grounds. In Zelman, however, the court rejected an establishment clause challenge to the Cleveland Pilot Project Scholarship Program, which enabled disadvantaged children to attend private and faith-based schools, thus clearing the federal-constitutional path to an expansion in school choice. Nevertheless, private school choice programs raise a number of other legal issues. This paper addresses several of the most significant.
First, it discusses whether students in the United States enjoy a constitutional right either to an education or to choose their schools and the implications of those rights in the battle for parental choice. The Supreme Court has held that the federal constitution does not protect a right to an education although it does protect the right of parents to send their children to public school.
Virtually every state constitution, however, enshrines the right to a public education—although there is tremendous diversity among both the wording of these entitlements and state supreme courts’ interpretation of them. These provisions have played only a limited role in parental-choice battles, although they are frequently raised in challenges to new private school choice programs. Neither the federal nor any state constitution guarantees public funding to enable parental choice, although state private school choice programs do guarantee funding for parental choice, at least for certain classes of beneficiaries.
Second, this paper explores the range of legal obstacles to the expansion of private school choice remaining after Zelman. In the aftermath of Zelman, many commentators predicted that state-constitutional establishment clauses—often called “Blaine Amendments”—would lead to the invalidation of many programs. This worst-case scenario has failed to materialize, although a few state supreme courts have invalidated programs on state-constitutional grounds, including Blaine Amendments and state-constitutional provisions mandating that states establish and maintain public school systems.
Third, this paper examines the intersection and possible tension between the growth in private school choice programs and the goals of promoting diverse and inclusive schools. Since private schools are not by virtue of their participation in a choice program transformed into government actors, they are not bound by either the federal constitution or federal special-education laws.
Efforts, however, have been made, thus far unsuccessfully, to challenge parental-choice programs as running afoul of both the federal equal protection clause and federal laws mandating maximum inclusion of disabled students. Despite the accusations leveled in these contexts, evidence suggests that most parental-choice programs actually lead minority students to enroll in more integrated schools. And many state programs are specifically designed to increase the educational options available to disabled students.
Finally, this paper discusses the religious-liberty implications of faith-based schools participating in private school choice programs. While Zelman made clear that religious schools need not secularize to participate in private school choice programs, many religious-school leaders remain concerned that the regulatory strings attached to public funds may threaten religious liberty. This has not been the case to date, although certainly the possibility of invasive regulations—including but not limited to those attached to public funds—has arguably increased in the wake of the Supreme Court’s recent decision constitutionalizing a right to same-sex marriage.
The religious-liberty implications of private schools participating in parental-choice programs and of religious schools converting to charter schools to secure public funds diverge sharply, however, since the accepted wisdom is that charter schools are public schools and must therefore be secular. While the facts on the ground in many states arguably undermine this assumption, significant legal and political impediments remain to religious charter schools. In light of these impediments, the better path forward is to advance the case for authentic private school choice, both by improving program design and funding and by increasing the supply of high-performing private schools.
Introduction
In 1990, 35 years after Nobel Laureate Milton Friedman first made the case for school vouchers, Wisconsin enacted the nation’s first modern private school choice program.[1] The Milwaukee Parental Choice Program provided public funds to enable 350 children to enroll in private, secular schools. Five years later, Wisconsin expanded the program to include religious schools.
Ohio soon followed suit with the Cleveland Pilot Project Scholarship Program. In 2002, the United States Supreme Court rejected an establishment clause challenge to the Cleveland program in Zelman v. Simmons-Harris, thus clearing the federal-constitutional path to expand private school choice.[2]
The Zelman decision gave proponents of private school choice reason to be optimistic. Many reform-minded state leaders had shied away from enacting voucher programs because of legal uncertainty. By eliminating the establishment clause question, the Supreme Court deprived opponents of one of their most potent weapons—the argument that vouchers crossed the elusive line separating church and state, terms which do not appear in the US Constitution.
But the legal question answered in Zelman represented only one impediment to the expansion of private school choice. For nearly a decade after Zelman, the private school choice movement languished. Impediments included the continued legal uncertainty about whether private school choice could survive state-constitutional challenges, the disconnect between the political support for private school choice and its intended recipients, and the inelasticity of supply in the private school sector.
But perhaps the most significant reason that the private school choice movement languished was the dramatic and unexpected ascendency of charter schools, which were aggressively promoted as a more “public” and politically palatable alternative for school choice. Charter school enrollment has grown from virtually no students 20 years ago to 2.3 million in the 2012–13 school year, whereas private schools actually enrolled fewer students in 2010 than in 2000.[3]
Today, private school choice is enjoying its own unexpected ascendency. At present, more than half of states and the District of Columbia have private school choice programs in place. These programs fall into four categories: (1) voucher programs, which provide publicly funded scholarships to enable students to attend private schools; (2) scholarship tax-credit programs, which incentivize donations to private scholarship-granting organizations that do the same; (3) education savings account programs, which empower parents to choose how to spend some portion of the public-education funding allocated for their children; and (4) refundable parental tax credits for private school tuition.
The largest programs in terms of enrollment are scholarship tax-credit programs in Florida and Arizona, which benefit, respectively, 70,000 and 60,000 students. The Milwaukee Parental Choice Program has expanded to benefit more than 26,000 students; Ohio has 5 voucher programs benefiting nearly 40,000 students; and 3 states—Indiana, Louisiana, and North Carolina—effectively entitle every low- and moderate-income child in the state to a scholarship ranging from $4,200 in North Carolina to $8,500 in Louisiana. In June 2015, Nevada became the first state to enact a universal private school choice program, an education savings account program that makes certain public-education funds completely portable. All told, during the 2014–15 school year, more than 350,000 students attended a private school as a beneficiary of a choice program.[4]
Especially alongside exponential growth in charter school enrollment, the expanding parental-choice footprint is rapidly reshaping American elementary and secondary education.[5] Not surprisingly, the expansion of parental choice also raises important legal questions for policymakers, parents, and participating private schools. This paper reviews a few of the most significant.
The first issue is whether students in the United States enjoy a constitutional right either to an education or to choose their schools. The second set of questions concerns the legal landmines remaining to the expansion of private school choice after Zelman. In the aftermath of that decision, many commentators predicted that state-constitutional establishment clauses—often called “Blaine Amendments”—would lead to the invalidation of many programs. The third issue is the intersection between the growth in private school choice programs and the goals of promoting diverse and inclusive schools. Specifically, parental-choice programs have been challenged for running afoul of the equal protection clause and federal laws mandating maximum inclusion of disabled students.
The paper concludes by discussing the religious-liberty implications of private school choice. After Zelman, it is clear that religious schools need not secularize to participate in private school choice programs. While no existing program regulations threaten the religious identity and mission of faith-based schools, many leaders of religious schools remain concerned that the regulatory strings attached to public funds may threaten religious liberty. This has not been the case to date, although certainly the possibility of invasive regulations—including but not limited to those attached to public funds—has increased in the wake of the Supreme Court’s recent decision constitutionalizing a right to same-sex marriage.
The religious-liberty implications of private schools’ participation in parental-choice programs and of religious schools “converting” to charter schools to secure public funds are quite different from each other, since the accepted wisdom is that charter schools are public schools and must therefore be secular. While the facts on the ground in many states arguably undermine this assumption, significant legal and political impediments remain for religious charter schools. In light of these impediments, it is best to advance the case for authentic private school choice, both by improving program design and funding and by increasing the supply of high-performing private schools.[6]
Notes
- Milton Friedman, “The Role of Government in Education,” in Economics and the Public Interest, ed. Robert A. Solo (New Jersey: Rutgers University Press, 1955). Since the mid-19th century, Maine and Vermont both have maintained “town tuitioning” programs, which permit students in towns without public high schools to use public dollars to attend other public or private secular schools. Illinois and Minnesota have very modest nonrefundable parental tax-credit programs. See Friedman Foundation for Educational Choice, The ABCs of School Choice: 2015 Edition, 55–57, 95–97, http://ift.tt/1QgdZfO.
- Zelman v. Simmons-Harris, 536 US 639 (2002).
- Michael Q. McShane, ed., New and Better Schools: The Supply Side of School Choice (New York: Rowman & Littlefield, 2015).
- Information about program details, including regulatory requirements and enrollment data, can be found in two excellent publications: The Alliance for School Choice, School Choice Yearbook 2014–2015: Breaking Down Barriers to Choice (Washington, DC: 2015), http://ift.tt/1II3SdK; and Friedman Foundation for Educational Choice, The ABCs of School Choice.
- Despite the recent expansion in the number of programs and enrollment, participation in private school choice programs pales in comparison to charter school enrollment, which grew by 13 percent between 2013 and 2014. In 2014–15, more than 2.5 million students attended a charter school, and charter schools enrolled more than 20 percent of all public school students in 43 school districts.
- See McShane, ed., New and Better Schools.
from AEI » Latest Content http://ift.tt/1Ss4ARu
0 التعليقات:
Post a Comment