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School Choice

These Two Court Decisions Show Just How Far Behind We Are on Education

School districts, despite their track record of not educating tens of millions of students, are still the only protected mechanism for delivering public education. And as two important court rulings announced last week demonstrate, buying or renting property is still the only constitutionally protected form of public school choice for parents. They also upheld the interests of the traditional school district above nearly everything else. Status quo does not go down without a fight, after all. In Washington, the state Supreme Court  struck down the state’s charter school law enacted by voter referendum in 2012. The decision has left families, school leaders, educators and state officials scrambling to figure out a path forward for the 1,200 students already enrolled in charter schools this year. On first read, the decision in League of Women Voters vs. Washington seems like a bit of a stretch to me. It relies on a 100-year-old definition for “common schools,” which are the only schools eligible for public funding under the state constitution, that narrowly limits such schools to those governed by an elected school board. That the court would not recognize that perhaps public education has changed over the last century is disappointing. As troubling as the Washington decision is for school choice advocates, my sense is the law can be remedied by the legislature or another referendum, and at any rate, only applies to the state of Washington.

Another Troubling Decision

The same cannot be said about the decision of the Eighth Circuit U.S. Court of Appeals to uphold a restriction on parental school choice in districts subject to a desegregation order. Under a 2013 law, parents in Arkansas seeking better educational opportunities could transfer their children to another school district. That same law allowed districts under desegregation orders to exempt themselves from the transfer provisions, thereby blocking the transfers, presumably because a loss of white students would upset the racial balance of the district and increase segregation. In Adkisson vs. Blytheville , white parents in Blytheville, Arkansas sued their local school district after it declared an exemption and denied their attempt to transfer their children to higher-performing schools in a neighboring district. The Arkansas legislature amended the law in 2015 to remove the exemption provision, meaning that going forward districts would not have the ability to block the parent transfers. Nevertheless, the Court of Appeals still addressed the constitutional issues of the case. Interestingly, this case was not about a right to education or the quality of education. Rather, it was about whether a district’s interest in complying with a desegregation order trumps the right of parents to choose a better school for their child.

Why It’s a Problem

Seeking school diversity is an important goal; diverse schools  provide clear benefits to all students. But school integration has also been incredibly difficult to achieve, and both racial and socioeconomic segregation have  grown in the past three decades. That’s why the court’s logic in Adkisson that prevents parents from choosing other schools is so problematic. First, the plaintiffs can still move. There is nothing to prevent white parents in Blytheville from moving out of the district and into a jurisdiction with better schools. In fact, this happens all the time and, because of the U.S. Supreme Court’s decision in Milliken vs. Bradley , in 1974, more meaningful desegregation efforts have faced major impediments . That ruling laid the ground for a local district and its boundaries to be able to trump a societal interest in integrating schools. In Milliken, the Court protected suburban school districts—and the communities that formed them—from being forced to help solve segregation issues in Detroit through a court-ordered metropolitan desegregation plan.

The Parent Trap

Now, in Adkisson, the Court of Appeals effectively declared that the interests of the district (this time claiming it was acting to promote integration) trumped the interests of parents exercising school choice. Trapping parents in a district is not an antidote for the forces that perpetuate segregation. Abundant evidence has shown that continuing segregation is a product of  housing and economic policies , as well as  how district boundaries are drawn . There is no reason to believe that keeping white parents from choosing other schools will in fact integrate the Blytheville schools if its 40-year-old desegregation order hasn’t done so already. Many urban districts have similar histories, making the Eighth Circuit decision a dangerous precedent if applied elsewhere. Ultimately, the families that cannot afford to move would continue to be forced to choose among lower-performing schools, while those that can move to other districts would continue to do so freely. If all of this feels a little last-century to you, it’s because it is. Despite advances like the Vergara decision, the judiciary’s understanding of our public education system hasn’t evolved.  
Eric Lerum has been working on public education issues for over a decade. Most recently, he led the policy efforts at StudentsFirst as the vice president of national policy.
Eric Lerum is the vice president of growth and strategy for America Succeeds, where he leads the organization’s efforts to amplify the business leader voice in support of improving public education. Eric has over a decade of experience in strategic planning, partnership development, and advising state and local policymakers regarding public education issues. Most recently Lerum led the policy ...

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