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 most state constitutions mandate public education as a first-order right for their citizens. Second, choice programs cannot have the practical effect of impeding educational opportunities in public schools. Education clauses in state constitutions obligate states to provide adequate and equitable public schools. Any state policies that deny students those opportunities are unconstitutional. Choice policies that, for instance, reduce public funding for education, stratify opportunities, or intensify segregation fall in that category.
Relying on numerous state statutes and often-overlooked district level data, this Article reveals that choice programs in several states are violating both of these constitutional limits.
Derek Black, Preferencing Educational Choice: The Constitutional Limits, 103 CORNELL L. REV. 1359 (2018).