Court Ordered Parent Choice: A Solution Fifty Years In The Making

This article was originally published in the Wake Forest University Law Policy Journal. Click here to read the full article.

Introduction:

In 1973, the United States Supreme Court held that there is no fundamental right to an education found in the U.S. Constitution. Far from barring the door to future litigation, San Antonio v. Rodriguez opened the proverbial floodgates, causing waves of plaintiffs to crash upon the courthouse doors. In the first place, San Antonio did not allow federal courts to detach from the subject of education. Nearly fifty years later, the Court continues to issue rulings that have a major impact. Since the turn of the twenty-first century, the federal courts have issued rulings on a number of K-12 and higher education issues, including scholarship programs, playground equipment, and even graduate courses of study.

In the second place, after dissenting in San Antonio, Justice Brennan went on to give friendly advice to those seeking legal protection but who had been turned away by the majority in San Antonio. Justice Brennan noted that “[s]tate Constitutions, too, are a font of individual liberties . . . .” This seemingly innocuous sentence in a law review article would embolden districts, taxpayers, and parents to challenge a range of state-based laws and practices related to all manner of education issues. Decisions at the state level could not be shirked—all fifty state constitutions contain language about the provision of an education system. The rulings and their attendant remedies, however, have been mostly underwhelming when viewed from the perspective of parents and students seeking better educational outcomes.

State courts, however, should be given a measure of grace. They were doing the best they could with the situations presented; in effect, making lemonade. Nevertheless, this article contends that in the nearly fifty years since San Antonio and through Carson v. Makin (heard in December 2021), legal rulings at the state and federal levels, changes in policy mechanics, and decades’ worth of evidence have finally converged to remove the barriers that have prevented a truly student-centric system of education. As students across the United States are coping with multiple school years disrupted by the COVID-19 pandemic, this confluence could not be better timed.