Law Commons^™

Preferencing Educational Choice: The Constitutional Limits, Derek Black

Faculty Publications

Rapidly expanding charter and voucher programs threaten a new education paradigm in which access to traditional public schools is no longer guaranteed in some communities. In some instances, choice programs are phasing out traditional public schools altogether. The most harmful effects of choice, however, occur at the local level, not the state level. Thus, this Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies limitations that state constitutional rights to adequate and equal education place on choice policy.

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that …

Aligning Education Rights And Remedies, Joshua Weishart

Law Faculty Scholarship

Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a 'fourth wave" of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered …