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Thursday, February 16, 2017

Only Free Students Can Exercise School Choice

From the Education Law Prof Blog

By Derek Black
February 13, 2017

The President of South Africa offered Nelson Mandela his freedom if he would renounce violence and then remain silent upon his release. Mandela rejected the offer, saying "Only free men can negotiate; prisoners can't enter into contracts.”

The concept of forced and unfair negotiation rings true in today’s education reform debates. The new Secretary of Education promises to continue that trend.

Over the past two decades, major education reforms have been forced upon disadvantaged students without the slightest recognition of the enormous power differential between the state and its disadvantaged students. These students and their families have, time and again, been asked either to accept the deplorable state of their current education or try out some new reform—a reform that would not be aimed at deplorable school conditions. 

Public schools in the United States are demonstrably separate and unequal, and both measures are on the rise. Take New York, for instance. A recent report by the Civil Rights Project shows that two-thirds of African American students in New York attend a school that is ninety percent or more non-white.


Another recent study shows that in New York schools with higher levels of concentrated poverty, the state only spend 90 cents for every dollar it spends in other schools. Nevada is even worse. It only spends 60 cents on the dollar in schools with higher percentages of low-income students. And the racial isolation of Latino and African American students in Nevada is among the worst in the nation.

In the midst of segregation and inequality, education reform continues to demand that these disadvantaged communities make concessions, but state and federal government rarely, if ever, offer integrated or equal schools. Instead, the state offers charters and vouchers. New York has been a hotbed for charter school expansion. Two years ago, Nevada adopted an aggressive voucher plan.

The hypocrisy of these responses is not new. In the late 1990s, the Ohio Supreme Court declared the state’s funding system constitutionally inadequate. A large portion of the state’s schools were so poor that the buildings were crumbling around the students. The air in classrooms was not safe to breath and the floors not safe to walk on. Elsewhere, schools simply did not offer parts of the curriculum because no one could teach it.

Rather than fix the problem, the state bought off its most segregated and unequal city—Cleveland. It offered a select few in the city a way out in the form of vouchers. Tellingly, the overwhelming majority of voucher students wound up in religious schools, but indicated they did not embrace the religion of their school. They simply had to get out.

The rational choice of families forced to attend segregated and unequal schools is to take the charter school or voucher. Even if that choice does not lead to better education, they cannot be blamed for trying to escape segregation and inequality. We should, however, blame the state for putting them in this position.

In the weeks and months ahead, we need not debate the merits of vouchers or charters. The response to the offer of vouchers and charters should be: give our disadvantaged students integrated schools and equal funding and then we can talk about vouchers and charters. Then we can talk about whether money matters.

The new Secretary of Education, Betsy DeVos, has shown no interest in fundamental education issues like this. She proposes charters and vouchers, but has said nothing of ensuring equal funding or integration.

The sad truth is that it is not really fair to single DeVos out on this score. Senators who narrowly secured her nomination are the same ones seeking to reverse the prior Secretary's efforts to ensure equal funding. If DeVos does not reverse the regulations, these Senators plan to do it themselves by statute.

In one of the most poignant passages written by a court, the New Jersey Supreme offered a rejoinder to segregation, inequality, and the politics of reform aimed at other issues:

“Even if not a cure, money will help, and disadvantaged students are constitutionally entitled to that help. If the claim is that additional funding will not enable poorer students to achieve at higher levels, the constitutional answer is that they are entitled to pass or fail with at least the same amount of money as their competitors.”

In the logic of Nelson Mandela, only students free from segregation and inequality can exercise school choice. Give them freedom. Only then can they exercise choice that their more privileged peers already have.

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