School Choice: The Case for Equal Education

By Frank Geng

Frank Geng is a freshman at the University of Pennsylvania and an associate editor of the Penn Undergraduate Law Journal.

Last year in Blytheville, Arkansas, a group of parents attempted to transfer their children to a public school in a nearby, wealthier district in hopes of giving them a better educational environment. School officials rejected the transfer applications, citing a historical desegregation order in their district from more than 40 years ago. The lower courts quickly dismissed the parents’ litigation, and on August 31, the Eighth U.S. Circuit Court of Appeals reaffirmed the decision. [1]

In the opinion, Judge Lavenski R. Smith stated, “We agree with the district court that [no] relevant precedent support[s] the proposition that ‘a parent’s ability to choose where his or her child is educated within the public school system is a fundamental right or liberty.’” [2] Arkansas state law, however, allows parents to choose where to send their kids to school—except in the case of districts under federal desegregation orders. Parents in these districts have the right to choose to send their children to private schools; however, on the matter of public education, they must conform to a federal mandate from 1971 that requires racial enrollment balance and prohibits transfers. The Court of Appeals did not rule on whether or not the mandate should still have effect, but rather focused on the rationale of equal protection.

Beyond the obvious anachronistic gaps in the state legislation, this case speaks to a larger debate at hand: school choice. In most US states, parents have no choice over which public school their children attend. But in some, the government allows some type of flexibility in the form of scholarship tax credits, school vouchers, educational savings accounts (ESAs), charter schools, and other programs. [3] Many believe that the underlying rationale of the policy of school choice comes from the 14th Amendment and its Equal Protection Clause. In 1968, however, Justice Brennan of the Supreme Court rejected a school choice plan from a Virginia district in Green v. School Board of New Kent County. [4] Brennan’s judgment has been a keystone in a judicial history that has consistently rejected these types of plans as inadequately addressing the issue of school segregation.

The school choice model, however, is based primarily in a logic of competition. In the example of a voucher or ESA model, parents would be able to send their kids to a school that is more fitting, be it public or private. Instead of paying taxes into the general state public education system, they would receive vouchers or an account withdrawal to use at an institution of their choice. Thus, if a school district noticed that one of its schools had a significant number of ingoing or outgoing transfers, it could act accordingly in its funding or operation. In simple terms, the competition for the school vouchers and funds would incentivize a focus on a school’s curriculum and teaching and would help flush out the least effective schools. In regards to segregation, a family that lives in a low-income district that notices a lower quality education at their local school could then choose to send their child to a better nearby public school. Famed economist Milton Friedman, founder of the eponymous Friedman Foundation for Educational Choice, was perhaps the foremost advocate of school choice, deriving his logic from his own free market principles. “Merit pay,” as Friedman calls it, is an essential part of a competitive market economy and, for him, is the only logical solution to the public education crisis. [5]

Opponents of this model claim that these practices may inevitably end up just depleting the public school system’s already strained resources. They are also concerned about the entanglement of government spending with religious institutions, as these vouchers are sometimes spent on parochial or other private religious schools. With regards to charter schools, critics point to examples of charter schools that have profit-seeking arms, which have become targets for private equity and hedge fund investments. [6] In an under-regulated environment, it is plausible to think that profiteering might be a potential result to a totally voucher-based system.

But if we think about it, school choice already exists on a national basis in the form of public universities. Every student that attends an in-state institution, whether or not in their local area, receives subsidized tuition—similarly with federal student loans and the G.I. Bill.

School choice exists outside the U.S. as well. France, for example, subsidizes both private and public schools, giving parents the option to choose between any of them. Sweden, too, allows students to both attend schools outside their municipalities and also use public funds towards private schools. [7] The voucher system has also found prominence in Chile’s education system. [8] The efficacy of the programs in these countries and the potential impact in the US, however, are still up for debate.

In the end, the issue comes back to the Equal Protection Clause. One could make a more legally pragmatic argument and claim that confining students to certain public schools based solely on geography (where residency is itself based on other socioeconomic factors) denies citizens of their jurisdiction “equal protection under the laws.” At least in the case of Blytheville, the issue of maintaining federal desegregation orders from the seventies should be examined by the Arkansas courts, especially in a case where those orders limit only individuals in select districts in a state that otherwise supports school choice.


[1] Gershman, Jacob. “No Guarantee of Public School Choice in Constitution, Appeals Court Rules.” New York Times. August 31, 2015. Accessed September 22, 2015. http://blogs.wsj.com/law/2015/08/31/no-guarantee-of-public-school-choice-in-constitution-appeals-court-rules/
[2] Adkisson v. Blytheville Sch. Dist. #5. 2015, 14 3746 1. Eight U.S. Circuit Court of Appeals.
[3] “School Choice in America”. Friedman Foundation For Educational Choice. Accessed September 22, 2015.
[4] Green v. County School Board of New Kent County. 1968, 391 430 1. U.S. Supreme Court.
[5] Friedman, Milton. “Busting the School Monopoly”. Newsweek. December 5, 1983. Accessed September 22, 2015. http://0055d26.netsolhost.com/friedman/pdfs/newsweek/NW.12.05.1983.pdf
[6] Wiggin, Addison. “Charter School Gravy Train Runs Express to Fat City”. Forbes. September 10, 2013. Accessed September 22, 2015. http://www.forbes.com/sites/greatspeculations/2013/09/10/charter-school-gravy-train-runs-express-to-fat-city/
[7] “Free to choose, and learn” The Economist. May 3, 2007. Accessed September 22, 2015. http://www.economist.com/node/9119786
[8] McEwan, Patrick J., Martin Carnoy. “The Effectiveness and Efficiency of Private Schools in Chile’s Voucher System”. Educational Evaluation and Policy Analysis. September 21, 2000. Accessed September 22, 2015.
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