Academic journal article Fordham Urban Law Journal

Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals

Academic journal article Fordham Urban Law Journal

Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals

Article excerpt

A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 Fordham Urb. L.J. 703 (2015).

Table of Contents

I.   What to Infer from Increasingly Popular Voucher Programs?
II.  Reframing the Relation Between Constitutional Obligations
        and Vouchers
     A. Alternative Ways to Frame Publicly Funded Voucher
     B. Money as a Partial Solution for Struggling Public
III. Adverse Selection and Death Spirals: The NCLB, ACA,
     and School Voucher Opposition


Professor Julie Mead's Article considers whether publicly funded voucher programs "subvert" states' ability to provide an "adequate" public education consistent with state constitutional requirements. (1) The critical analytic move in Mead's Article involves characterizing publicly funded voucher programs as a "discretionary option" and, in contrast, a state's duty to adequately fund traditional public schools as a state constitutional "obligation." (2) Mead then argues that the growth in the number of publicly funded voucher programs and the accelerating participation rates in those programs threaten to dilute states' abilities to meet their constitutional obligations owed to traditional public schools. (3) Paradoxically, then, it is the interaction of voucher programs' increased popularity and states' increased willingness to fund them that Mead exploits to support her conclusion that "[s]tate constitutions have clearly established that children have a genuine right to a quality public education, not merely the privilege to shop for schooling in the educational marketplace." (4)

Just to be clear--and this central point bears repetition--Mead's argument seeks to transform voucher programs' increased popularity, and state governments' increased willingness to fund them, into reasons to limit voucher programs rather than expand them. Or, a more modest form of Mead's thesis is that regardless of what happens to voucher programs, struggling traditional public schools need more, rather than less funding that results partly from a diminishing share of students served by traditional public schools.

Perhaps even more important than Mead's argument itself, however, is that the structure of her argument implies an overly constrained understanding of publicly funded vouchers and their relation to a student's right to an adequate education. That is, Mead's argument understands publicly funded vouchers through the lens of only those children who attend public schools (as well as public schools' numerous institutional interests and constituencies, including teacher unions).

Of course, other lenses exist and publicly funded voucher programs are capable of far more nuanced and granular understandings than Mead's Article emphasizes. For example, one alternative way to understand publicly funded voucher programs is to consider how they provide some--perhaps many--students with their only meaningful access to an adequate education. This is certainly the case for far too many students, many of whom are students of color or from low-income households, or both, and assigned to "failing" or "inadequate" public schools. (5) Finally, efforts to limit school choice, particularly in today's No Child Left Behind Act of 2001 (NCLB) (6) motivated intensive standardized test environment, imply an awareness of adverse selection, a core insurance law doctrine. (7) And partly in an effort to ward off more "educational death spirals," those defending public schools, such as Professor Mead, seek to limit alternative educational options and diminish the ability to exit failing (or successful) public schools. The desired background goal--to dampen the increasing number of public schools lurching towards an "educational death spiral"--however, will continue to confront substantial headwinds. …

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