Michelle Duke MED 6490 March 2, 2010

1. School Choice (School Law Cases and Concepts, p. 403-415) Michelle Duke MED 6490 March 2, 2010

2. Origin of School Choice: Parents demanded more choices in selecting appropriate educational opportunities for their children. State and local school boards were compelled to respond.

3. School Choice Opponents see some of the choice plans in direct opposition to the “melting pot” idea. Proponents argue that bringing consumer choice to education will encourage innovation and ultimately make public schools stronger.

4. Choice Plans: • Public School Inter- and Intra-District Open Enrollment • Intra-District Specialized Schools • Voucher Plan

5. NCLB influence • In 2003, 15% of students were in a chosen public school environment. • As NCLB is implemented this number is expected to increase. • Section 6316: right to transfer to a school that is not “under improvement” • Section 7912: right to transfer to a safer school

6. 1.Public School Inter- and Intra- District Open Enrollment • Students are allowed to attend their school of choice in their own district or anywhere in the state, provided there is room and their attendance does not create racial segregation. • Generally, federal and state monies follow the student.

7. 2.Intra-District Specialized Schools • Larger districts design specialized schools and allow students to attend them in place of their home school. • Magnet Schools emphasize particular educational interests/features • May keep students from dropping out of school • May retain gifted and talented students • Mini-schools or Schools Within a School often have a special curriculum for students who are pregnant, disabled, unruly, etc.

8. 3. Voucher Plan • First proposed by Nobel Laureate economist Milton Friedman decades ago. • Designed to provide poor parents an opportunity to give their child a private education • Original plan called for parents to receive a voucher redeemable for a specified maximum sum to “spend” at the school of their choice. • Until the Zelman decision* bythe U.S. Supreme Court in 2002, which upheld the use of vouchers at sectarian schools, 29 states had voted down voucher legislation.

9. Bush v. Holmes, 919 So.2d 392 (Fla. 2006) • In 1999, Florida became the first state to offer a state-wide voucher program to help parents of students in failing schools offset the cost of private education • Bush v. Holmes held Florida’s sate-wide voucher system unconstitutional

10. Colorado • Voters rejected a voucher plan in 1992 • Voters rejected a tuition tax credit plan in 1998 • In 2003 the CO Legislature passed the first voucher program after the Zelman decision. • HOWEVER, it was held to be unconstitutional in 2004, by the CO Supreme Court, in Owens v. Colorado Congress of Parents,92P.3d 933(Colo.2004)

11. Other than the Zelman decision, courts have tended to hold voucher-type plans unconstitutional. • Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), cert. denied, 525 U.S. 997 (1998) • Milwaukee Parental Choice Program for low-income children was upheld • AT ISSUE: whether this program violated: • the Establishment Clauseof the First Amendment, since state aid could be used at sectarian or nonsectarian schools; and • the Equal Protection Clauseof the 14th Amendment, as it questioned purpose or intent to discriminate

12. Chittenden Town School District v. Department of Education, 738 A.2d 539 (Vt. 1999) cert. denied, 528 U.S. 1066 (1999) • The Vermont Supreme Court held that a school district’s secondary-education tuition reimbursement policy allowing tuition to be paid to sectarian schools was unconstitutional.

13. Zelman v. Simmons-HarrisSupreme Court of the United States, 2002536 U.S. 639 • In one of its most important establishment clause cases in a century, a divided Court upheld an Ohio school voucher plan and removed any constitutional barriers to similar voucher plans in the future. • Many public schools in Cleveland were deemed failures • Parents were given up to $2,250 a year for tuition at participating public or private schools in the city and neighboring suburbs; it also allocated tutorial aid for students who remained in public school.

14. Because the number of students applying to the program greatly exceeded the number of vouchers available, recipients were chosen by lottery from among the eligible families. • In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation; none of the adjacent suburban public schools joined the program; and 96% of the students receiving vouchers were enrolled in religiously affiliated schools.

15. The Supreme Court ruled that the Ohio program did not violate the Establishment Clause of the First Amendment to the U.S. Constitution, because it passed a five part test developed by the Court in this case, titled the Private Choice Test.

16. Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria: • the program must have a valid secular purpose • aid must go to parents and not to the schools • a broad class of beneficiaries must be covered • the program must be neutral with respect to religion • there must be adequate nonreligious options.

17. The Court ruled that the Zelman case met the Five Part Test.

18. Mueller (tax deductions for private school tuition) • Witters (vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor) • Zobrest (federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools) ____________________________________________ ~ all meet the Five Part Test and are not subject to challenge under the Establishment Clause The incidental advancement (or perceived advancement) of a religious mission is attributable to the individual recipient of the benefits, and not to the government.

19. But at issue in Zelman: Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular faiths a “law respecting an establishment of religion” within the meaning of the First Amendment?

20. Final word on Vouchers:

21. Final word on Vouchers: • They have not received significant popular support to date • There are separation of church and state issues • Vouchers take money away from the public school system • Risk of segregation and discrimination (Equal Protection Clause of the 14th Amendment)