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Opinion: Opponents of School Choice Simply Defend Public School Monopoly

01 June 2016   Nat Malkus,
One Form of School Choice Remains Undefeated in Court

One thing all approaches to school choice share, aside from offering alternatives to residentially assigned public schools, are predictable judicial challenges. Charter school legislation has had a good record in court, with a notable recent exception in Washington state. Vouchers have had a more mixed record, with judges often sending advocates back to the drawing board to revise programs to pass constitutional scrutiny. And as for the newest choice mechanism, Education Savings Accounts? So far, they are undefeated at trial.

The genesis of the first ESA came after an Arizona voucher program was struck down because it directly transferred state funds to private schools, in violation of the state constitution. To circumvent this common legal issue, the Arizona ESA program was designed to provide parents with a part of state educational funding, so they could customize their child’s education using private schools and/or other education service providers. Under ESAs, the state does not transfer the funds to schools or education service providers; parents do.

To date, this arrangement has held up at trial. The largest of the five established ESA programs, Nevada’s ESA — which makes about 95 percent of the state’s students eligible — is the latest to survive a judicial challenge. Earlier this month, Nevada District Judge Eric Johnson threw out a lawsuit brought by the ACLU of Nevada. The ACLU argued the ESA was unconstitutional because the program was not “neutral with respect to religion” and because the constitution required that the state only support one system of public schools.

Johnson ruled that Nevada has no influence over how parents use ESA funds and thus the program is neutral with respect to religion. He also ruled that the constitution permits alternatives to public schools because it allows the state to encourage education “by all suitable means.”

The case will probably head to the state Supreme Court on appeal and other cases are pending on the Nevada ESA, so advocates should hold the champagne. But this case, and the fact that this victory is just one step in the gauntlet school choice programs must run, illustrates some key features common to school choice programs’ judicial challengers.

First, opponents of school choice are not defending principles; they are using principles to defend the public school monopoly.

In her reaction to the Nevada verdict, Amy Rose, legal director for the ACLU of Nevada, clung to principle, saying that the ESA program “allows private religious schools to use taxpayer dollars to indoctrinate and discriminate against students on the basis of religion, sexual orientation, gender identity, disability, and other grounds. Taxpayer funds should not be used for these discriminatory purposes.”

Not only does Rose’s inflammatory description of indoctrination and discrimination not square with reality, it doesn’t even square with her case. The ACLU’s case included arguments for religious neutrality and a single system of public schools. Rose only mentions the former, which is effective rhetoric for demonizing choice advocates but obscures the fact that her case is geared to defend public schools as the “one best system,” not to defend lofty principles.

This Nevada suit is just one part of an admitted pattern. School choice opponents have not only intimated they are willing to challenge every available legal issue up to states’ supreme courts, they have vowed to do so.

After a defeat in the 2002 Zelman v. Simmons-Harris decision, in which the U.S. Supreme Court upheld voucher programs under the Constitution’s Establishment clause (sending future parental choice litigation to state courts), National Education Association lead counsel Robert Chanin promised to “continue to challenge voucher and choice programs under state constitutions on whatever grounds are available to us — from lofty principles such as church-state separation, to ‘Mickey Mouse’ procedural issues like the single-subject rule.”

Since then, choice opponents have proven him right, with the Nevada ESA case being the latest example. The ACLU happily argued both religious discrimination and support of a parallel school system — whichever might end the ESA.

If the traditional public school system in Nevada was ably serving the state’s students, the ACLU’s position might be defensible. However, since it is not, opponents of choice are defending public schools to the detriment of students.

Nevada’s public schools rank 43rd in the nation in terms of 8th-grade reading and math performance and even lower in 4th grade. Moreover, Nevada’s population has grown at one of the highest rates of any state for years, and schools cannot keep up. Clark County, which educates three-quarters of the state’s students, is so overcrowded that in 2014 the superintendent remarked, “I could build twenty-three new schools and they would open full and overcrowded.”

Despite the long track record of poor performance and the overcrowding, opponents of choice stand firm in their conviction that the public school system is the only legal option for Nevada students.

ESAs won’t be a panacea for Nevada public schools any more than charter schools or voucher programs have been. Like all choice programs, Nevada’s ESAs can create educational opportunities long before the public school monopoly can make dramatic improvements. What sets ESAs apart from other choice programs is their resilience to the same kitchen sink of legal arguments that opponents have brought against them and other choice programs.

More challenges will come and only time will tell how long ESAs’ winning streak will persist. But the Nevada case was another big win for ESAs, the newest, and so far undefeated, approach to creating educational choice.


Nat Malkus is a research fellow in education policy studies at the American Enterprise Institute, where he specializes in K-12 education.

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