A Framework for Choice Remedy Litigation

Abstract

Although school choice proponents have generally been on the offensive in legislative arenas over the past 2 decades, they have played almost constant defense in the judiciary, seeking to prevent courts from undoing school choice programs. Opponents typically wield state constitutional provisions against school choice programs. Properly construed, such provisions often are intended not to thwart but to secure educational opportunities. School choice supporters should consider taking the offensive, applying such provisions toward their intended ends by challenging defective schools and seeking meaningful remedies for children trapped in them. Choice remedy litigation can provide an effective complement to legislative efforts in the larger campaign to secure for disadvantaged children the precious educational opportunities that are their constitutional right.

Notes

^{1 1}I recount the successful initial 12-year litigation effort to defend school choice programs in Bolick (2003).

²Only recently have conservatives and libertarians begun systematically to focus on state constitutions to advance freedom. The Goldwater Institute was the first market-oriented policy group to launch a litigation program, the Scharf-Norton Center for Constitutional Jurisprudence, to focus almost exclusively on vindicating freedom protections in the state constitution (see Bolick, 2007).

³The California decision is unpublished.

⁴In addition to the accountability requirements that are helpful to choice advocates in identifying failing schools, NCLB presently includes a guarantee of public school choice for children who are enrolled in schools that fail to make adequate yearly progress for two consecutive years. Few among the many eligible children have availed themselves of such options for a variety of reasons, including the failure of school districts to publicize the options (as the law requires them to do) and the lack of adequate school alternatives. Unfortunately, NCLB does not provide a private right of action to enforce the choice options and, of course, does not include private schools as options. The Alliance for School Choice currently has a complaint pending before U.S. secretary of education Margaret Spellings asking her to enforce the public school choice options for California children in the Los Angeles and Compton school districts.

⁵For a state-by-state assessment of the constitutionality of school choice, see http://ij.org/pdffolder/schoolchoice/50statereport/50stateSCreport.pdf (Institute for Justice Web site).

⁶For a more extensive discussion of Blaine amendments, see Bolick, (2003).