The Law of Parental Choice

Document Type

Book Chapter

Publication Date

2020

Publication Information

in Handbook of Research on School Choice 46 (Mark Berends, Ann Primus, & Matthew G. Springer, eds., 2d 2020).
Available in Hesburgh Library
LB1027.9 .H344 2020

Abstract

The chapter begins by asking whether, and to what extent, either federal or state constitutional law enshrines rights to education and/or parental choice, and, if so, under what circumstances. The chapter then turns to constitutional questions raised by public school choice programs, such as the vexing issue of whether public education authorities consider a student's race in admissions decisions to integrate the schools participating in these programs.

The chapter goes on to address three constitutional questions about charter schools:

  • First, for purposes of both state and federal constitutional law, are charter schools legally public or private schools?
  • Second, does the First Amendment prohibit religious charter schools, and if it does not, does it require states to permit them?
  • And third, do racial disparities within the charter sector raise Equal Protection concerns?

Finally, the chapter discusses four questions about private school choice programs:

  • First, does the Establishment Clause prohibit faith-based schools from participating in private school choice programs?
  • Second, what limitations does the federal constitution place on regulations governing private and faith-based schools' participation in parental choice programs?
  • Third, what additional limitations on private school choice are imposed by state constitutions?
  • And fourth, can a state rely on its own constitution to exclude religious schools from participating in private school choice programs.

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