Constitutional Right to School Choice?

No one is a more fervent fan of school choice---or for that matter, of creative legal advocacy---than me. But the Eighth Circuit got it right last Monday when it ruled in Stevenson, III v. Blytheville School Dist. #5 (No. 14-3746) there is no federal constitutional right to choose among public schools.

Arkansas passed a statute creating inter-district school choice for public students---unless school districts exempt themselves because they are still under federal desegregation orders. The defendant school district exempted itself based on a desegregation case that was closed many years ago. Rather than challenge the dubious exemption in state court, the plaintiffs---parents who wanted to avail themselves of transfers---filed a federal lawsuit arguing their due process and equal protection rights were violated.

The Supreme Court consistently has held there is no federal constitutional right to education. Invoking the Pierce v. Society of Sisters line of cases, the plaintiffs gamely argued that their parental rights were violated. The appeals court ruled that Pierce simply allows parents to remove their kids from public schools and does not confer a right to choose among public schools. The court also rejected the equal protection claim because the program is race-neutral and the government's actions had a rational basis.

Perhaps in the future there will be a case in which school districts subject students to such deplorable conditions, or limit their mobility on such arbitrary grounds, that due process and equal protection are violated. But this was not such a case.

The Douglas County (CO) School District soon will petition the USSC for review of a CO Supreme Court ruling (Taxpayers for Public Education v. Douglas County School Dist., No. 2015 CO 50, June 29, 2015) striking down its voucher program under the state's Blaine Amendment, which forbids public funding of religious schools. Such discrimination against religious schools and families should be held to violate the First Amendment.

The bigger question left unanswered by the Stevenson decision is what are these desegregation decrees doing mucking up school choice? Hundreds of school desegregation orders, many of them moribund, continue to exist, mainly but not exclusively in the South. They have been invoked to impede movement of kids to charter schools and other educational options.

The Obama Administration dusted off a 40-year-old court order to subject Louisiana's voucher system to federal court jurisdiction, notwithstanding that the overwhelming majority of kids in the program are black. The perverse consequence is that a decree intended to secure educational opportunities for black children could be used to thwart them.

Citing among other cases the USSC's decision in Shelby County, which struck down section 4 of the Voting Rights Act, I argued this summer in the Fifth Circuit that a federal court may not extend its jurisdiction over a decades-old desegregation case to encompass a contemporary, race-neutral school choice program (Brumfield v. Dodd, No. 14-31010). A successful outcome could help remove the specter of desegregation decrees from efforts to expand educational opportunities to children who desperately need them.

School choice and public school reform remain fertile areas for legal trailblazing. Despite the outcome in the Eighth Circuit, we need to continue investing legal ingenuity to tackle the urgent needs of our nation's children.