Legal Challenges Will Not Stop School Choice
Merriam-Webster defines the term school choice as an option for students “to attend a school other than their district’s public school.”REF A growing body of literatureREF shows that parents consider multiple factors when choosing the most appropriate school for their children, including academics, school safety, morals and values, character development, school reputation, and more. Unless parents have other options, however, compulsory education laws mean that where a child is educated is determined instead by geography alone.
Parents may send their children to a private school, but only if they can afford to both pay taxes that support a public school system they will not use and to pay private school tuition. School choice options make more affordable alternatives to traditional public schools by allowing parents to apply their child’s share of public education funding to learning environments that better serve their educational needs.
Education policy, including establishing schools, curricula, general requirements for enrollment and graduation, and funding, is primarily under state and local government authority.REF School choice policies, therefore, are adopted and implemented by state or local government. This Legal Memorandum will first examine the philosophical foundation and historical development of school choice and outline the types of school choice options available today. It will then look at school choice litigation, concluding that school choice options will likely survive legal challenges as advocates work to broaden the availability of these policies.
The Roots of School Choice
The idea of maximizing parental choices in the education of their children has deep philosophical roots. In Thomas Paine’s 1791 work The Rights of Man, he advocated for giving parents money to let them choose the type of education their children receive.REF Eight decades later, John Stuart Mill similarly advocated for “parents to obtain the education where and how they pleased.”REF Paine and Mill both explained why parents should have choices in their children’s education and suggested a framework for implementing such a policy.
The modern champion for school choice is Milton Friedman, who, as Paine and Mill had done, both explained the philosophical basis for school choice and offered an approach for implementing it. Friedman did this in two important essays and a book that, together, influenced the transition from philosophical ideas to concrete policies.
Friedman made his case for school choice in free-market terms. In his 1955 essay, “The Role of Government in Education,” for example, he said that rather than being limited to schools run solely by the government, “parents could express their views about schools directly, by withdrawing their children from one school and sending them to another.”REF He noted in another essay that “support for free choice of schools has been growing rapidly and cannot be held back indefinitely by the vested interests of the unions and educational bureaucracy.”REF
Friedman proposed an approach in which the government would provide “parents vouchers redeemable for a specified maximum sum per child per year if spent on ‘approved’ educational services. Parents would then be free to spend this sum and any additional sum on purchasing educational services from an ‘approved’ institution of their own choice.”REF Vouchers, Friedman argued, “are not an end in themselves; they are a means to make a transition from a government to a market system.”REF
School Choice Options
This philosophical foundation for school choice has supported the development of concrete policies aimed at giving parents more options for their children’s education, often distinguished by the way schools are funded. Whereas public schools are supported by local, state, and—to a far lesser degree—federal funding, private education choice options include both public and private means of financial support.REF
Private School Choice. States have adopted private education choice in various forms, including education savings accounts (ESAs), school vouchers, tax-credit ESAs, tax-credit scholarships, and individual tax credits and deductions. Below is a breakdown of private education choice options.
- ESAs are government-authorized savings accounts, in which the state deposits a portion of a child’s per-pupil funding from the state education formula into a private account that parents use to purchase education products and servicesREF such as private school tuition, tutoring, learning programs, services, and materials.REF
- School vouchers pay, in part or in full, for a student to attend a private school by directly sending the family a voucher for a portion of what would have been used for public school. Parents can use school vouchers for both religious and non-religious education options.REF
- Tax-credit ESAs are for taxpayers who donate to nonprofits that fund and manage parent-directed K–12 ESAs to obtain either full or partial tax credits.REF In general, and similar to the accounts described above, the funds can be used for various educational needs ranging from paying for private school tuition, tutors, online learning programs, and higher education expenses. With some exceptions, ESAs and tax-credit ESAs allow parents to save unused funds from year to year.REF