Law Commons^™

The Worst Choice For School Choice: Tuition Tax Credits Are A Bad Idea And Direct Funding Is Wiser, Michael J. Broyde, Anna G. Gabianelli

Faculty Articles

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools.

Tax credits’ prevalence is not inexplicable, of course. It is …

Decoupling Property And Education, Nicole Stelle Garnett

Journal Articles

Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that decoupling property and education also advances at least economic development goals. …

Post-Accountability Accountability, Nicole Stelle Garnett

Journal Articles

Over the past few decades, parental choice has exploded in the United States. Yet, despite early proponents’ hopes that parental choice would eliminate the need to regulate school quality—since parents’ choices would serve an accountability function—demands to use the law to hold chosen schools accountable for their academic performance are central features of education-reform debates today. This is an opportune time to consider the issue of academic accountability and parental choice. Parental choice has gained a firm foothold in the American educational landscape. As it continues to expand, debates about accountability for chosen schools will only intensify. The questions of …

Civil Rights And The Charter School Choice: How Stricter Standards For Charter Schools Can Aid Educational Equity, Rachel E. Rubinstein

Law Student Publications

This paper analyzes the way variations in charter-enabling legislation may exacerbate segregation and how federal and state reforms could better utilize the charter system to further integration. Part I discusses the history of school choice and the social science underlying its potential as a vehicle for integration as well as further segregation. Part II reviews research on charter school demographics and the effectiveness of relevant civil rights statutes. Part III analyzes themes in local charter legislation that can influence charter school segregation by limiting accessibility for low income families and students with disabilities. Finally, Part IV offers recommendations for policy …

Impacts Of Public School Choice Act Of 2013, Sarah C. Mckenzie, Gary W. Ritter

Policy Briefs

The Public School Choice Act of 2013 (Act 1227) allows students to transfer to a nonresident district. Previous school choice law restrictions based on race, were removed in the new law. As a result, concerns have been raised about the possible negative impacts of choice on districts’ racial balance. This brief addresses these concerns by examining the impact of the Public School Choice Act of 2013 on district enrollment and racial integration.

What We Disagree About When We Disagree About School Choice, Aaron J. Saiger

Faculty Scholarship

The debate over school vouchers, charter schools, and other varieties of school choice has become a bit stale. It would improve were advocates on all sides to acknowledge several crucial realities that they too often obfuscate. First, the debate is fundamentally normative, not empirical. The desirability of choice depends primarily upon how we weigh competing claims of equality and liberty in education. Second, all participants in the debate should acknowledge both that constrained choice is still genuine choice, and that how and to what extent parental decisions are constrained are fundamental issues in choice policy. Finally, with respect to the …

Opt-Out Education: School Choice As Racial Subordination, Osamudia R. James

Articles

Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and …

Tax Credit Scholarship Programs And The Changing Ecology Of Public Education, Hillel Y. Levin

Scholarly Works

The traditional model of public education continues to be challenged by advocates of school choice. Typically associated with charter schools, magnet schools, and tuition voucher programs, these advocates have recently introduced a new school choice plan, namely tax credit scholarship programs. More than a dozen states have adopted such programs, and hundreds of millions of dollars are now diverted each year from public programs to private schools. These programs are poorly understood and under-studied by legal scholars. This Article assesses the place of these programs within the ecology of public education, considers the fundamentally different approaches states have taken to …

Blaine It On Politics: The (Non-) Effect Of Anti-Aid Amendments On Private School Choice Programs In The U.S. States, Patrick J. Wolf, Richard D. Komer, Michael Q. Mcshane

Education Reform Faculty and Graduate Students Publications

James G. Blaine was a prominent American politician of the late 19th Century. Although Blaine was an unsuccessful Republican candidate for President in 1884, U.S. Secretary of State, Speaker of the House, and a Senator from Maine, his primary legacy was the enshrinement of "anti-aid" amendments in the constitutions of 39 U.S. states. These so-called "Blaine Amendments" were designed to prohibit government funds from supporting "sectarian" religious organizations such as schools and charities. In Blaine's day, "sectarian" was widely understood to be a euphemism for "Catholic". Nondenominationally Protestant organizations such as the public schools of the day were considered to …

Law And Policy Entrepreneurs: Empirical Evidence On The Expansion Of School Choice Policy, Michael Heise

Cornell Law Faculty Publications

This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991–2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school and school voucher programs, both fall comfortably within the broader rubric of “school choice.” As such, it is difficult to understand the development of state legislation for one school choice variant independent of the other. Thus, this analysis includes the presence of publicly- or privately-funded voucher programs in a state as a possible factor influencing the adoption of charter school legislation in a state. Second, …

Are Charters Enough Choice? School Choice And The Future Of Catholic Schools, Nicole Stelle Garnett

Journal Articles

An essay is presented on Catholic and charter schools and the closing of such schools in the U.S. The academic performance, parental involvement and the after-school religious education targeted for charter school students is discussed. The connections between the Catholic and charter schools and the legal issues governing conversion to charter schools is also discussed along with the concerns in the urban community due the closure of Catholic schools.

Changing The Conversation In Education Law: Political Geography And Virtual Schooling Book Review Essay, Aaron J. Saiger

Faculty Scholarship

In Five Miles Away, A World Apart, James E. Ryan concludes that the educational reforms of the hour, school accountability and school choice, will exacerbate rather than undermine the systematic educational advantages enjoyed by wealthier Americans. Paul Peterson, in his Saving Schools, argues that increasingly centralizing American schools have become sufficiently centralized that, as a labor-intensive industry, few productivity gains are available from governance reform, even as demand escalates for the customization of education to individual needs. Both volumes therefore pin their hopes for change upon political geography-the relationship between people and educational institutions in space. Ryan argues that changing …

Catholic Schools, Charter Schools, And Urban Neighborhoods, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

This paper addresses implications for urban neighborhoods of two dramatic shifts in the American educational landscape: (1) the rapid disappearance of Catholic schools from urban neighborhoods, and (2) the rise of charter schools. In previous studies, we linked Catholic school closures to increased disorder and crime, and decreased social cohesion, in Chicago neighborhoods. This paper turns to two questions unanswered in our previous investigations. First, because we focused exclusively on school closures in our previous studies, we were uncertain whether our results reflected the work that open Catholic schools do as neighborhood institutions or whether we were finding a “loss …

A Winn For Educational Pluralism, Nicole Stelle Garnett

Journal Articles

This short essay takes as its starting point on the Supreme Court’s recent decision in Winn v. Arizona Christian Tuition Organization, which involved an Establishment Clause challenge to Arizona’s scholarship tax program — a school-choice device that provides tax credits from state income taxes for donations to organizations granting scholarship to private K-12 schools. In Winn, a divided court ruled that taxpayers lack standing to challenge this and other tax credit programs — thereby dramatically limiting the Flast v. Cohen exception to the no-taxpayer-standing rule. The essay makes the case that the Winn will promote authentic educational pluralism by clearing …

Catholic Schools, Urban Neighborhoods, And Education Reform, Margaret F. Brinig, Nicole Stelle Garnett

Journal Articles

More than 1,600 Catholic elementary and secondary schools have closed or been consolidated during the last two decades. The Archdiocese of Chicago alone (the subject of our study) has closed 148 schools since 1984. Primarily because urban Catholic schools have a strong track record of educating disadvantaged children who do not, generally, fare well in public schools, these school closures have prompted concern in education policy circles. While we are inclined to agree that Catholic school closures contribute to a broader educational crisis, this paper shies away from debates about educational outcomes. Rather than focusing on the work done inside …

The Rise And Fall Of School Vouchers: A Story Of Religion, Race, And Politics, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Article examines why school vouchers have failed to garner the support that so many assumed would follow the Court's decision in Zelman. The explanation, I suggest, concerns religion, race, and politics. The original rationale for vouchers was what I call the "values claim"-vouchers protected the right of parents to send their child to a school that reinforced their values. Originally promoted by Catholics, the values claim was adopted by evangelical Christians concerned about the secularization of public schools after the 1960s. Although the values claim was central for most of the history of the voucher movement, in the decade …

School Choice And States' Duty To Support Public Schools , Aaron J. Saiger

Faculty Scholarship

The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such programs must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. …

The Supreme Court's Role In The Growing School Choice Movement, Kevin D. Brown

Articles by Maurer Faculty

The expansion of school choice in elementary and secondary education, particularly in urban areas, is one of largest current educational reform movements sweeping the nation. This is true despite the fact that it is still too early for a consensus to develop about the educational benefits of increased choice. 1 Society always precedes schooling. Thus, major educational reforms pass in and out of favor depending on social conditions and how prevailing patterns of understanding interpret those conditions.2 Among the most significant social developments influencing educational reforms are legal decisions. Since the Supreme Court is the final authority on constitutional law, …

The Theology Of The Blaine Amendments, Richard W. Garnett

Journal Articles

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the federalism defense of the provisions. …

The Political Economy Of School Choice, Michael Heise, James E. Ryan

Cornell Law Faculty Publications

This paper examines the political economy of school choice and focuses in particular on the role of suburbanites. This group, which we contend is the most important and powerful stakeholder in choice debates, has yet to receive much attention in the commentary. It turns out that suburbanites, by and large, are not wild about school choice, either public or private. Suburbanites are largely satisfied with the schools in their neighborhoods and want to protect the physical and financial independence of those schools (as well as their property values, which are tied to the perceived quality of local schools). School choice …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

Education Reform At The Crossroads: Politics, The Constitution, And The Battle Over School Choice, Richard W. Garnett

Journal Articles

The "Education Reform at the Crossroads" Conference's four panels tackled the education-reform and school-choice questions from a variety of perspectives—one panel, led by Cleveland's indefatigable councilwoman and education revolutionary Ms. Fannie Lewis, explored the history and increasingly visible politics of the school-choice debate—in particular, the marked increase in support for school choice among African Americans"—while another group focused on the constitutionality of including religious schools in voucher programs and on the historical connection between anti-Catholic nativism and the common-school movement. A third panel discussed framing school-choice as a "civil rights issue" and the fourth—which included political scientist and education researcher …

Equal Educational Opportunity And Constitutional Theory: Preliminary Thoughts On The Role Of School Choice And The Autonomy Principle, Michael Heise

Cornell Law Faculty Publications

Inadequate schools impede America's long-standing quest for greater equal educational opportunity. The equal educational opportunity doctrine, traditionally moored in terms of race, has expanded to include notions of educational adequacy. Educational adequacy is frequently construed in terms of educational spending and framed in terms largely incident to constitutional litigation.

This paper explores the potential intersections of the school choice and school finance movements, particularly as they relate to litigation and policy. The paper argues that school choice policies constitute a viable remedy for successful school finance litigation and form a remedy that simultaneously advances individual autonomy, one critical constitutional principle.

Book Review. Normative And Going Nowhere, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.