Constitutional Protection of Equity and Adequacy: A New Frame for Testing Charters and Vouchers

Last week, at the Education Law Prof Blog, Derek Black, a professor at the University of South Carolina School of Law, posted a short summary of his new paper to be published soon in the Cornell Law Review. The paper presents new and, I hope, promising thinking about legally challenging charter schools and private school tuition voucher programs under the fifty state constitutions.

Black is an academic, not a litigator, and he is realistic. He devotes the last section of his paper to some of the challenges that will likely arise if his ideas become the basis for actual litigation. Nonetheless, given the failure of previous attempts to challenge school privatization, Black argues for significant reframing: “The question now is whether the constitutional debate over school choice can be reframed from one premised on an all-or-nothing approach to a more nuanced one that relates to how choice programs actually affect the public education system. Without this reframing, advocates need not waste their time in court…. If any limit exists on choice programs, it is how they relate to and affect educational opportunity in the public school system. Prior claims have attacked choice as problematic in and of itself, whereas this (new) approach asks the same question that all prior equity and adequacy litigation has: is the state delivering adequate and equitable opportunities?”

Black argues that in the past advocates, “launched attacks premised on the notion that choice programs were inherently antithetical to the public education system.”  Past challenges were filed at the statewide level in an attempt to invalidate whole charter school laws or voucher programs.  Instead Black suggests: “The facts that matter most are not statewide, but local.  Choice programs appear small at the state level and have little to no effect on most school districts… A narrowed focus reveals that the effects of statewide policy are concentrated in particular urban districts. From the perspective of the local urban district, the effects range from existential threats to serious impediments to equal and adequate education.”

Black’s first example is Newark, New Jersey, where, “the state’s arcane system of funding charter schools produces a funding deficit in the school district with each student who transfers to a charter. To be clear, the Newark school district does not just lose its state funding for those students to the charter school; rather the state requires the district to send charters an amount in excess of what the district received from the state. This funding mechanism, then, clearly decreases funds available for students remaining in public schools. As social science, legislative studies, and states’ own statutes all confirm, the shrinking education pot and flawed charter funding mechanisms are depressing per pupil funding in several districts at a rate that can seriously depress educational opportunities and academic achievement. In short, by developing district level data, this Article demonstrates public school advocates’ worst fears: choice is draining funds from public schools.”

Noting that all fifty state constitutions define the right to education and states’ duty to deliver it, Black explains how court precedent has established that state constitutional education clauses protect public school students’ right to equal access to educational opportunities and resources. Besides guaranteeing equitable access to services, courts have also affirmed adequacy claims that “focus on identifying a baseline of quality educational opportunities that a state must provide. Various state constitutions indicate that the state must deliver ‘efficient,’ ‘thorough,’ or ‘sound basic’ education.”

Black believes limits to choice programs must be conceptualized around the state constitutional promise of equitable access for all students to adequate public education: “If any limit exists on choice programs, it is how they relate to and effect educational opportunity in the public education system… (T)his approach asks the same question that all prior equity and adequacy litigation has: is the state delivering adequate and equitable educational opportunities?  If not, what policies are causing these deprivations?…  (C)laims must become far more factually granular.  Plaintiffs cannot assume that choice programs inherently harm public education. They must show it.  This requires more than simply pointing to the competition between traditional public schools and choice programs.”

“Plaintiffs must demonstrate that choice programs are actually causing or connected to inadequate or inequitable educational opportunities in particular schools. Statewide data alone will not do this, as choice programs remain relatively small that that level.” “At the micro level, however, the effects of choice can be staggering.  Statewide education choice policies do not affect all districts  equally.  Their effects are heavily concentrated on a select group of districts. These districts can have choice programs that enroll a  third of a district’s students —and those percentages continue to grow. As the following sections demonstrate, that growth is causing opportunity deficits in public schools, threatening the very financial viability of some districts, and stratifying educational opportunity across and within educational sectors.”  Black’s example here is Ohio, where the Cleveland and Columbus school districts “are bleeding money to charter schools and the state is doing little to address the problem. The state, for instance, recently announced a $464 million statewide increase for public education.  That increase, however, was swallowed by the $760 million in transfers the state would require districts to make to charters.  The deficit, of course, was most pronounced in places where charters are concentrated.  Cleveland saw a $5 million increase in state funding, but would have to transfer $141 million to local charters. Columbus saw a $40 million increase from the state, but would transfer $116 million to charters.”

Inequity is exacerbated, writes Black, because charter schools and vouchers are bleeding money from the very districts serving the poorest students who need expensive extra support: “The changes in education funding and student market share between the various sectors are also producing further stratification in educational opportunity—financially, qualitatively, and demographically.  First, because charter schools and voucher enrollment are not proportionally spread across states, they have primarily become the price students living in poor neighborhoods with poor public schools are asked to pay. These students, however, already have the highest needs and typically the most underfunded schools in the state. Thus, the concentrated negative effects of charters are often visited on a state’s most needy students.”

A short report cannot do justice to a paper of over fifty pages.  I urge you to read Black’s paper and consider its implications for the school districts in your state. Derek Black is an academic, and it is, of course, a long step from developing a new strategy for litigation to  turning the theory into a legal challenge to a state’s voucher program or charter school laws. Nevertheless, it is encouraging that serious experts are exploring how to protect the public schools in particular communities from the very disparate impact of state vouchers and charter policies. Because of the way state laws operate, while the financial viability of many school districts is untouched, other school districts are losing millions of state and local dollars each year. The losses are growing rapidly in urban public school districts that desperately need to be able to provide basic services and educational enrichment for our nation’s poorest children.

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