6 Developments in Local Control
While the rise of standards-based reform and third wave school finance litigation in the 1980s and 1990s represented a fundamental change in large-scale law and policy reforms involving educational equality, another change was lurking at the same time – one built around the notion of local control. As discussed in Chapters 3 and 4, local control has often been positioned against the idea of equality in education law and policy. In the early stages of desegregation, southern states and districts employed “freedom-of-choice” plans, ostensibly empowering parents to decide where their children attended schools, to avoid integrating schools. The Supreme Court explicitly cited the value of preserving local control when it began to withdraw from desegregation in Milliken v. Bradley, and the Supreme Court and state courts emphasized the value of local control when refusing to overturn states’ school finance schemes. In doing so, these governmental institutions backed away from the centralized governance structures that appeared necessary to effect greater educational equality.
In the 1990s, however, the principle of local control began to intersect with equality in education law and policy in several different ways. On one hand, local control continued to serve as a central justification for courts to back away from traditional notions of educational equality. Driven by a trio of cases decided by the Supreme Court in the 1990s, the value of local control served as a primary legal reason for federal courts to withdraw from desegregation cases around the country. As at least a partial result, the levels of segregation in many schools returned to those at the time when Brown v. Board of Education was decided. Yet, local control has also served as one of the fundamental principles driving the movement in law and policy for school choice that began to sweep through the United States in the 1990s, primarily under the banners of charter schools and tuition voucher programs.
While charter school policies ultimately became much more common than those authorizing vouchers, they have key features in common. Charter school laws are generally passed at the state level and enable governmental institutions to contract with (or grant a charter to) an independent school operator.1 Charter school operators then receive a specified sum of money for each student who attends the school and, in exchange for meeting goals specified in their charters, have significant control over key issues such as personnel, budget, and curriculum. Laws or policies authorizing vouchers provide students with publicly funded tuition certificates that may be redeemed at participating public and private schools, which often include both religious and nonreligious private schools.2 Both charter school and voucher policies accordingly allow students and their parents some degree of choice over which school to attend and place a significant amount of power at the individual and school levels. Given that there are a variety of other governance structures that emphasize local control and choice, such as policies authorizing magnet schools, structures focusing on school choice have become highly visible and widespread.
Despite this emphasis on local control in school choice efforts, these reforms are deeply rooted in the idea of educational equality. The school choice reforms are based partly on the idea that a politically unresponsive, centralized bureaucracy cannot respond effectively to serious educational problems facing underserved groups. Under this logic, the only way to provide more equal and high-quality education is by decentralizing education. This decentralized structure arguably empowers and encourages educators to employ their expertise without the challenges of the traditional public school administrative and regulatory environment. Moreover, this theory relies on the market rather than governmental institutions (such as school districts) to improve weak schools through competition. While school choice has been cited by politicians and advocates as promoting important public values like international competitiveness, the school choice movement is also founded on empowering private individuals to take control of their own fate.
In order to examine local control in education law and policy in the 1990s and beyond, this chapter first examines the emergence of school choice strategies as a major type of large-scale education reform. To this end, the movement to institute voucher programs in various states is first examined. This examination focuses on the spread of laws involving vouchers, the underlying politics of this movement, the judicial treatment of voucher programs, and the empirical evidence on the effectiveness of vouchers. The discussion of voucher policies closely attends to Zelman v. Simmons-Harris, a case decided by the Supreme Court that addressed the constitutional issues raised by public institutions providing funds for students to attend private, religious schools.3 This chapter then turns to the spread of policies focused on the authorization of charter schools in states, with a similar focus on the politics of the charter school movement, the judicial treatment of charter schools, and empirical evidence of their effectiveness. Finally, the cases decided by the Supreme Court in the 1990s and 2000s that relied on the logic of local control to justify the almost complete judicial withdrawal from desegregation are discussed to show how the notion of local control has continued to operate in a more traditional fashion.
The Emergence of School Choice
In the 1990s, tuition voucher programs and the authorization of charter schools emerged in states as major education reform strategies. While voucher programs had most of the momentum in the beginning of the decade, it quickly became clear that the creation of charter schools was a much more politically and legally feasible reform. Throughout the 1990s, charter schools accordingly proliferated around the United States as a decentralizing brand of reform that served as a counterpoint to the standards-based reform and accountability movement spreading through the states at the same time. By 2010, charter schools were present in a large majority of states and highlighted by President Barack Obama as one of the most promising types of education reform strategies.4
Despite this surge of school choice strategies in law and policy, some forms of school choice had long been present in the United States.5 For example, students had long attended private schools without public support, and magnet schools for academically gifted students had provided public school options to students and parents besides traditional neighborhood schools for decades. Magnet schools were an especially prevalent form of public school choice before the 1990s. These types of schools generally have specialized elements that differ from those of traditional public schools, including different curricula or pedagogical approaches. In response to court orders to desegregate (or to avoid judicial oversight), various districts created magnet schools in the 1970s and 1980s to attract students from other neighborhoods to attend magnet schools in racially homogeneous neighborhoods.
Beginning as early as the 1960s, calls to decentralize increasingly large and consolidated school districts arose in several sectors. Grassroots groups supporting minority rights called for decentralized decision making over schools to restore power to parents and communities, and business groups called for decentralizing school authority to increase efficiency and innovation. These two forces visibly joined in 1988 with a policy that created “local school councils” (LSCs) in Chicago Public Schools.6 Each public school in Chicago had its own LSC, which assumed a significant amount of governance authority over issues such as principal hiring and school budgeting for its school. Moreover, both the business and grassroots communities supported the initial creation of LSCs, and eight of eleven members of each LSC were to be parents and community representatives.
Since the 1980s, business groups and neoliberal political organizations have driven the public discourse surrounding school choice and particularly charter schools.7 For example, the Democrats for Education Reform (a political action committee supported largely by hedge fund managers) and the Progressive Policy Institute (the policy arm of the Democratic Leadership Council) have consistently pushed for school choice. Groups that provide services like charter school management and alternative training for teachers and school leaders have similarly pushed for school choice, including New Leaders for New Schools, Knowledge Is Power Program (KIPP), Green Dot charter networks, Teach for America, and the New Teachers’ Project. While these organizations have generally associated themselves with liberal politics, right-leaning groups have heavily supported school choice as well. In line with the sort of deregulatory approach espoused under the Reagan administration, right-leaning think tanks that espouse free-market philosophies, such as the American Enterprise Institute, Cato Institute, and Hoover Institution, have proliferated and generated policy papers that consistently support school choice. With continuing support from different fronts, school choice became one of the most high-profile education reform strategies in the 1990s and continued to expand through 2010.
School Vouchers
When voucher policies first began to appear as a viable sort of education reform, they reflected a seemingly unlikely fusion of political ideas. On the most basic level, voucher policies are a form of school choice that entails alternative mechanisms for funding students’ educations. Under a voucher system, students and their parents can choose which school to attend, and the government (generally a state government or school district) routes funding to follow the student to that school. Under the least restrictive voucher systems, students can choose to attend public, nonreligious private, and religious private schools and the government pays for at least a certain amount of the tuition. However, some voucher programs have limited the types of schools that are eligible to receive vouchers. Because of the difficult legal and political issues raised by including religious private schools in public voucher programs, these more limited programs have excluded religious private schools.
Although voucher systems gained most of their traction in the early 1990s and beyond, voucher proponents attempted to institute these systems at the state level from at least the 1950s. Many of the freedom-of-choice schemes enacted in southern states in the wake of Brown v. Board of Education provided students with tuition grants that could be spent at nonreligious private schools.8 Although the Supreme Court effectively deemed such schemes insufficient for desegregation purposes in Green v. New Kent County Board of Education, new coalitions of voucher proponents emerged by the late 1960s.9 Grounded in a distrust of the government’s capacity to guard the interests of underserved groups, these proponents supported vouchers as a way to protect minority students from failing bureaucratic big city school systems. These efforts particularly focused on the value of community control over schools. Such logic intersected with that of free-market enthusiasts who supported the idea of vouchers because of the market that would be created by treating students and parents as consumers who could make choices between public and private schooling options.10
In the 1970s, voucher policies also began to gain support from leaders of religious dominations such as Catholicism who aimed at providing educations that accorded with their religious beliefs.11 Such support for voucher programs was particularly strong in states such as New Hampshire and Wisconsin. Although these efforts ultimately did not gain a strong political foothold, vouchers began to look increasingly viable in the wake of the political changes of the early 1980s. As discussed in Chapter 5, the support for deregulation, individual freedom, and private markets dramatically increased in the early 1980s and provided fertile political soil for vouchers to take hold.12
By the late 1980s, voucher policies accordingly began to gain significant political traction as reform options in various states legislatures. In 1988, Governor Tommy Thompson (R-WI) spearheaded the introduction of the first comprehensive private school voucher proposal in the Wisconsin state legislature.13 The program was eventually passed on the second attempt in 1990 when Governor Thompson worked with a Democrat, Representative Annette Williams. In 1991, this program began as the Milwaukee Parental Choice Program (MPCP). The program was limited to students in Milwaukee, restricted student attendance to nonreligious private schools, and was quite small when it began – in its first year, the program served only ten schools and 341 students. Moreover, the program provided grants only to students in families with incomes that did not exceed 175 percent of the federal poverty line and capped student participation at no more than 1 percent of total district enrollment. However, state legislation expanded the program in 1995 to include religious schools and raised the student participation cap to 15 percent of district enrollment. As a result, this program radically expanded by the end of the decade. In the 1998–9 school year, 6,085 students participated in the program.14
Comprehensive voucher systems that provided tuition grants for students to attend religious private schools also emerged in two other major locations during the 1990s. In 1995, the Ohio state legislature enacted the Cleveland Scholarship and Tutoring Program (CSTP).15 This program was enacted after Republicans took control of the state House of Representatives, which put Republicans in control of both houses of the state legislature and the governorship (under the Republican governor George Voinovich). The implementation of CSTP began in the 1996–7 school year and applied only to students entering kindergarten through second grade who lived inside the boundaries of the Cleveland school district. CSTP eventually expanded through eighth grade as the students initially enrolled in the program progressed from grade to grade. Students and their families were given tuition vouchers of either 75 percent or 90 percent of private school tuition, with the larger amount reserved for families with incomes below 200 percent of the federal poverty level. Both private schools in district boundaries and public school districts surrounding Cleveland could apply to participate, and tuition vouchers were awarded by lottery with priority given to low-income families. Notably, fifty-three private schools in Cleveland participated during the first year. Most of these schools were religious Catholic schools. By the 1999–2000 school year, the program included fifty-six schools and more than thirty-seven hundred students. The program also included a tutoring component that provided assistance to any students who chose to remain in public school and similarly provided more funds for students from families with greater financial needs.
In 1999, Florida adopted the other major voucher policy of the 1990s, the Opportunity Scholarship Program (OSP). This program was the country’s first voucher program implemented on a statewide basis, and it provided tuition vouchers to students who attended schools that failed to perform adequately on the basis of student test scores. If a school was labeled as failing for any two years during a four-year period, the students in the school became eligible to receive tuition vouchers that could be redeemed at private schools. Efforts to enact vouchers during the 1990s emerged in several other states as well, such as Pennsylvania and New Mexico. However, these efforts were ultimately defeated in state legislatures.16 Bills were also proposed in the U.S. House of Representatives and Senate that would have involved federal support for students to attend religious private schools through devices such as tax-free educational savings accounts.17 However, in part because of the issues raised by public support of religious institutions, Congress refused to adopt these proposals. Still, given the popularity of vouchers, some states (such as Maine and Vermont) have enacted voucher policies that allow students to attend only nonreligious private schools.
Zelman v. Simmons-Harris and the Aftermath
Although vouchers gained significant political support throughout the 1990s, they also attracted vocal critics. While some critics focused on vouchers’ potentially negative effects on the public school system (such as the potential to siphon money away from public schools and undermine social cohesion promoted by public schools), others focused on the problems arguably raised by the public funding of religious organizations. This hostility toward vouchers quickly led to litigation. Immediately after the passage of the Cleveland voucher program in 1996, a group of Ohio citizens challenged the law authorizing the program in state court. When the Ohio Supreme Court eventually considered the case, it found that the program violated certain procedural requirements of the Ohio state constitution.18 In response, the Ohio legislature remedied these problems and left the basic structure of the program intact. In 1999, reformers sued again in federal court in Zelman v. Simmons-Harris on the grounds that the program violated the establishment clause of the First Amendment of the U.S. Constitution. The establishment clause provides, “Congress shall make no law respecting an establishment of religion” and has generally been used as the basis for litigation aimed at enforcing the “separation of church and state.”19 Both the district court and the Sixth Circuit Court of Appeals found that the voucher program was unconstitutional because it violated the establishment clause.20 However, the Supreme Court held that the program was constitutional by a 5–4 vote in 2002.21
In order to analyze the constitutionality of the voucher program under the establishment clause, the Supreme Court looked to precedent from several earlier establishment clause cases it had decided. On the basis of an analysis of such cases, the Court found that the establishment clause prevents a state from enacting laws that do not have a secular purpose or have the effect of advancing or inhibiting religion. According to the majority, there was no dispute that the voucher program was enacted “for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system.”22 The Court accordingly turned to the question of whether the program had the proscribed effect of advancing or inhibiting religion. After conducting an analysis of establishment clause cases involving school funding issues, the Court found that a governmental aid program is constitutional under the establishment clause where it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”23
Having articulated this test, the Supreme Court proceeded to an analysis of whether the Cleveland voucher program offered “true” private choice. To answer this question, the Court noted several aspects of the program: the program provided assistance to a broad class of individuals (parents who reside in Cleveland) without reference to religion; the program permitted the participation of all schools in the district; adjacent public schools had the opportunity to participate; program benefits were available to parties regardless of their religion; the only state preference in the program was for low-income families, who would receive more assistance; and there were no financial incentives to skew the program toward religious schools. On the basis of this evidence, the majority of the Court found that the voucher program in fact offered individuals “true” choice. Justice Souter notably disagreed in his dissent. He pointed out that because 82 percent of participating private schools were religious and 96 percent of scholarship recipients enrolled in religious schools, the program favored religious schools. However, Justice Rehnquist countered in the majority opinion that 81 percent of private schools in Ohio were religious as well and that there were several factors driving these statistics that were not related to religious favoritism in the program. Moreover, emphasizing his view of the efficacy of Cleveland’s program, Justice Thomas stated in his dissent that vouchers would enhance the life prospects of African American students who want to escape failing inner city schools.24 On the basis of such legal and policy reasoning, the Court found that vouchers are constitutional under the establishment clause.
The Supreme Court’s decision in Zelman elicited strong responses from critics and supporters. Critics focused on the public funding of religious schools assailed the Court’s logic and broader shifts in establishment clause jurisprudence that prefigured its opinion in Zelman.25 Other critics voiced arguments about how the decision would destroy public schools by allowing market-based education policies to channel money toward private schools.26 However, others celebrated the Court’s decision and predicted that vouchers would quickly spread across the nation. U.S. Secretary of Education Rod Paige favorably compared Zelman with Brown v. Board of Education because it encouraged a “new civil rights revolution and usher[ed] in a ‘new birth of freedom’ for parents and their children everywhere in America.”27
Despite such praise, states enacted school voucher laws only to a very limited extent after Zelman. Laws permitting students to attend private schools with tuition vouchers on a statewide basis were passed in Arizona, Colorado, Indiana, Ohio, and Utah, and laws permitting students in particular cities to attend private schools were passed in Washington, D.C., and Louisiana (permitting vouchers only in New Orleans after Hurricane Katrina devastated public school facilities).28 These laws mirrored the major characteristics of the voucher laws that had been enacted in the 1990s – they generally focused funding on families with low incomes. While only some of these laws included caps on the number of students who were eligible to participate, very few students in the United States actually used vouchers. In 2006, only about fifty thousand students across the country used them.29
There are several reasons that vouchers did not spread as some had predicted. Implementing voucher programs entails several administrative and financial burdens for school districts due to factors such as the need for districts to engage in monitoring processes and provide information to the public, the need to provide students with transportation services, and the lack of available seats in schools that accept vouchers.30 Voucher programs also failed to generate strong and widespread political support. In 2005, at least sixteen states considered bills authorizing voucher programs, but only two states passed such bills (with one of these bills focused on expanding the Cleveland voucher program throughout Ohio).31 This political opposition proved especially strong in suburban areas because voucher laws made it possible for low-income students to enter wealthy suburban districts, thereby arguably decreasing the competitive advantage held by students whose families reside in those areas.32 Even voucher laws that were successfully enacted faced strong political opposition. For example, Utah voters repealed the state’s voucher law before its implementation began.33
The language of state constitutions has also presented significant barriers for the spread of voucher laws. Several state constitutions include “Blaine Amendments,” or provisions that explicitly prevent the government from providing funds to religious schools. According to one count, sixteen state constitutions prohibit direct or indirect aid to religious schools, while fourteen more states prohibit direct aid without explicitly referencing indirect aid (such as aid provided through the provision of tax credits for educational expenses).34 Focused on the language of this type of provision in its state constitution, the Arizona Supreme Court found its statewide voucher program unconstitutional.35
At least fourteen state constitutions also have provisions that require the establishment of a “uniform” system of public schools.36 This type of provision was at the center of litigation in Bush v. Holmes, a case decided in 2006 by the Florida Supreme Court.37 In this case, the court considered the legality of Florida’s OSP and found that the program was unconstitutional under the state constitution’s uniformity clause. The majority indicated that because the OSP funded schools subject to less regulation than public schools, the program prevented the school system from being uniform. The court particularly focused on the fact that the OSP permitted public funds to be allocated to private schools that did not receive direct oversight from the state and were not required to implement standardized state curricula and teacher certification requirements. Although the Wisconsin Supreme Court reviewed a similar argument and found that the Milwaukee voucher program was permissible under the Wisconsin constitution, commentators have argued that the reasoning of Bush v. Holmes could be replicated by other courts in states that have uniformity provisions.38 Finally, at least six state constitutions contain provisions that delegate authority to control public schools to local school boards and districts.39 The Colorado Supreme Court found its state’s voucher law unconstitutional under this type of provision in 2004 in Owens v. Colorado Congress of Parents.40 In at least a partial response to such barriers (legal and otherwise), a handful of states have implemented “neo vouchers,” which support families that send their children to private schools through the provision of tax credits for educational expenses.41
Despite the significant attention vouchers have received, there has been little compelling empirical evidence about their effectiveness at equalizing or improving students’ educational opportunities at scale. Much of the ultimately limited research on vouchers programs has found that vouchers have a very small and limited benefit at most on student achievement.42 Although vouchers may increase competition among public and private schools and facilitate greater parental engagement, the focus of increased competition and engagement is often on school features other than academic quality.43 In contrast to the claims of many critics, vouchers also do not appear to segregate students or “skim the cream” of the top students from low-performing schools.44 So, although voucher programs do not appear to harm students and schools, these programs also do not appear to be effective at leveraging equal educational opportunities or performance.
In short, voucher programs emerged in states in the early 1990s by capitalizing on favorable political sentiments toward the free market and the value of the individual that flowered in the early 1980s, as well as the potential to equalize educational opportunities by removing schooling from centralized bureaucracies. Strongly reflecting the values of local control and the empowerment of individuals who had been poorly served by the schools, vouchers held promise as a policy tool under which traditionally opposed political groups could rally. Indeed, voucher programs were continually advocated by proponents (and criticized by opponents) largely on the basis of political preferences rather than empirical evidence. However, especially given the ways in which vouchers programs resulted in the channeling of public funds to religious institutions, these programs ultimately faced strong political and legal pushback, and their spread has been limited at most. By 2010, only Louisiana, Ohio, Wisconsin, and Washington, D.C., operated traditional voucher programs.45 Still, the fundamental emphasis of voucher programs on decentralizing educational authority to improve the education of underserved students held significant political promise that would be integrated into other reforms.
Charter Schools
As it became clear that vouchers did not have the political backing to spread across the United States, the charter school movement quickly emerged as a major reform effort with similar philosophical underpinnings. Like the voucher movement, the charter school movement focused on decentralizing educational decision-making authority. As noted in the beginning of this chapter, state laws authorize the operation of charter schools. As a result, the legal requirements governing charter schools can differ significantly across states.46 Still, charter schools are generally created when a governmental entity contracts with, or grants a charter to, an independent school operator under a state’s charter school law.47 Although rules for attending charter schools are also inconsistent across states, students generally decide whether they want to attend a charter school and choose which school to attend.48 Charter schools then receive a certain amount of money for each student who attends the school, and these schools maintain significant control over key issues, such as personnel, budget, and curriculum, in exchange for meeting goals detailed in the charter.49 Charter schools generally receive funds from the school districts in which students reside but ultimately receive less money per pupil than public schools in the same areas. Many states also have caps on the number of charter schools allowed.
A wide range of constituencies has supported state legislation authorizing charter schools.50 As a result of the choice and flexibility inherent in charter school policies, business-oriented proponents (including both conservatives and the “New Democrats” of the 1990s) have argued that charter schools lead to innovation and efficiency. As a result, charter schools arguably generate competitive effects that drive up the quality of both charter and traditional public schools.51 After it became clear that voucher policies would not be enacted at a federal level, many conservatives also supported charter school policies as a second-best option. As discussed previously, a range of conservative, market-oriented think tanks and service-oriented education groups have strongly supported charter schools. As with vouchers, some liberal advocacy organizations have also supported charter schools because they arguably empower minority groups through the decentralization of authority away from unresponsive governmental entities. Albert Shanker, the president of the American Federation of Teachers, supported charter schools because he believed that they could increase teacher professionalism and autonomy by removing burdensome administrative oversight from these schools. Given the presence of independent school operators, the increased flexibility given to these operators, and the extent to which the logic of charter schools draws from that of privatization, charter school laws arguably blur the distinctions between public and private schools, and charter schools have been accordingly labeled as “quasi-public.”52
Once legislation authorizing charter schools appeared, charter school laws spread quickly around the United States. Minnesota enacted the first law authorizing the creation of charter schools in 1991; California soon followed in 1992. By 1996, more than half the states and Washington, D.C., had charter school laws in place.53 The federal government also became formally involved in the charter school movement with the enactment of the Public Charter Schools Program, spearheaded by the Clinton administration. This discretionary grant program was integrated into the Elementary and Secondary Education Act (ESEA) in 1994 and originally appropriated $6 million to support the planning, development, and initial implementation of charter schools in states with charter school laws.54 In 1998, Congress reauthorized this program with the Charter School Expansion Act, which was appropriated $145 million for FY 2000.55 By 2011, there were more than fifty-four hundred charter schools serving more than 1.7 million students in forty-one states.56 However, charter schools continued to be funded at the lower rate on average of 61 percent of their traditional public school counterparts.
Despite the popularity and political viability of charter school laws, the debate surrounding charter schools has been highly politicized. Because charter schools can be seen as a direct threat to traditional public schools, several critics have argued that charter schools represent an unjustified and harmful privatization of education.57 Moreover, conflicting research of suspect methodological quality about the effectiveness of charter schools has been reported in major news outlets and cited by both charter school proponents and opponents in policy debates.58 As such, the political scientist Jeffrey Henig argued that advocates at each extreme of this debate “wave studies to support their position and claim that their proponents are willfully perverting the canons of social science methodology.”59 Yet, many policy makers have continually framed charter schools as engines for social mobility and international economic competitiveness.
Further highlighting the extent to which charter school legislation has proven controversial among different sectors, several interested parties have challenged the legality of charter schools through litigation. Courts in states including California, Michigan, and New Jersey have considered whether charter schools are in fact “public” schools under state constitutions and whether charter school laws unconstitutionally authorize the allocation of public funds for private purposes.60 In these cases, state supreme courts have universally found that charter schools are indeed public and laws authorizing charter school funding are constitutional.61 Plaintiffs in Ohio alternatively argued that the state’s charter school legislation violates the education clause of the state constitution, which requires a “thorough and efficient” system of common schools throughout the state.62 However, emphasizing the benefits of local control of schools, the Ohio Supreme Court found that the state’s charter school law appropriately emphasizes flexibility, choice, customization, and experimentation to ensure that children receive an adequate education. At least one federal court has also upheld the constitutionality of a charter school law resulting in a school district’s decision to close a noncharter public school with a large Hispanic population because it could not find any discriminatory intent.63 In addition to ruling on the fundamental legality of charter schools, some courts have addressed the power of authorizing bodies to govern charter schools. Courts have found that inadequate instructional materials, fiscal mismanagement, unsafe conditions, or an inability to deliver an adequate educational program should be overseen and remedied by authorizers.64 Courts have also upheld the rights of authorizing bodies to refuse, revoke, or authorize charter schools for similar reasons.65 On the basis of such decisions, it appears unlikely that courts will invalidate charter school legislation.66
As with vouchers, the significant political support received by charter schools has appeared to outstrip the available evidence.67 Empirical research on the effectiveness of charter schools to boost student performance has revealed that some charter schools have produced students with high test scores, such as those in the high-profile national charter school network Knowledge Is Power Program.68 But at the same time, many charter schools have been riddled with organizational and personnel problems and have produced students with very low test scores.69 When examined in the aggregate, it appears that charter schools have produced students who, on average, perform the same as or slightly lower than traditional public school students on standardized tests.70 Still, parents who send their children to charter schools generally have been happier with their schools than parents who send their children to traditional public schools.71 Despite such evidence, it has remained very difficult to make robust comparisons between charter schools and traditional public schools on the basis of student achievement. A variety of statistical issues, such as the selection bias related to differences among students who attend charter schools and those who do not, have proven very difficult to eliminate conclusively from most large-scale analyses of charter schools.72
The evidence has been similarly mixed about the extent to which charter schools facilitate innovation in schools. Given charter schools’ comparative autonomy, charter school proponents have argued that these schools will change the basic operations of schools.73 As a result, charter schools will arguably create competition among schools, which in turn will increase the overall quality of schooling.74 While charter schools have emphasized certain innovations, such as extended time in school and the use of technology to facilitate distance learning, there in fact has been little going on in charter schools that has not been piloted within the traditional public school system.75 Although some researchers have found that charter schools have positive competitive effects, other researchers have found that there are negligible effects.76 And although some have criticized charter schools for screening out racial and ethnic minorities and poor students, and for contributing to increasing segregation in schools, empirical research generally has not reflected these claims in the aggregate.77
In short, charter school legislation appeared at approximately the same time as voucher legislation but has spread much more widely. Like vouchers, charter schools strongly reflect the values of local control and the empowerment of individuals to act as consumers to make their lives better. And although charter schools receive public funding, they are free from traditional methods of democratic control over schooling. However, charter school legislation has proven to be a much more politically feasible brand of reform that can garner the support of liberals and conservatives without running into the pitfalls raised by including truly private and religious schools in school choice programs. Yet, especially given the way in which charter school policies blur the distinction between public and private schools, the charter school movement has faced significant pushback in the public sphere and even in court. And although the empirical evidence on the effectiveness of charter schools has been mixed at best, charter school legislation has only spread and strengthened. So, while charter school policies have proven to be a politically appealing reform strategy, there is little evidence that they can serve as a “magic bullet” for dramatically improving learning opportunities for individual students around the United States as many of its proponents claim.
The Supreme Court Returns to Desegregation
Although school choice policies such as charter school and voucher programs have relied on the principle of local control to effect educational reform, this principle has also been used to halt federal court oversight of desegregation in the 1990s and beyond. Returning to desegregation litigation after largely withdrawing since the 1970s, the Supreme Court decided a series of three cases in the 1990s that clarified when a desegregating school district should be declared unitary – Board of Education v. Dowell, Freeman v. Pitts, and Missouri v. Jenkins. In doing so, the Court repeatedly highlighted the notion of local control, which had played a prominent role in Milliken v. Bradley and San Antonio Independent School District v. Rodriguez. Moreover, the Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 made it very difficult for districts that were deemed unitary or never under a desegregation decree to diversify their student bodies. Together, these cases have freed school districts from continuing oversight by district courts and have allowed significant resegregation in schools around the country.
Board of Education v. Dowell, decided by the Supreme Court in 1991, marked the Court’s reinsertion into desegregation litigation.78 Like many other desegregation cases of the 1990s, Dowell had been going on for decades. The case began in 1961 when African American students and their parents sued the Oklahoma City school board to end de jure segregation in its public schools. In 1972, a federal district court ordered the school board to implement a busing plan to desegregate the school district. In 1977, the district court stopped enforcing the plan when it found that the school board had complied with the plan, the plan had worked, and the school district had achieved unitary status. Although this decision of the district court was not appealed, the school board passed a new student assignment plan in 1984 that relied on neighborhood assignments for students and weakened busing requirements. Reformers returned to court, arguing that the district had not in fact achieved unitary status and that the new student assignment plan would actually resegregate schools – under the plan, eleven of sixty-four elementary schools would have had greater than 90 percent African American enrollment, twenty-two schools would have had greater than 90 percent white enrollment plus other minorities, and thirty-one schools would have been “racially mixed.”79
After the case moved back and forth between the district court and the Tenth Circuit Court of Appeals, the Supreme Court decided its first major desegregation case in more than a decade in 1991. In a 5–3 decision (with one justice taking no part in the decision), the Court underscored that federal supervision of school systems was intended only as a temporary measure for past discrimination. In doing so, the Court heavily emphasized the importance of local control over schools and cited cases where this principle had also played an important role, such as Milliken and Rodriguez. On the basis of this logic, the Court stated that the Constitution does not require the “Draconian result” of “judicial tutelage for the indefinite future” and that the vestiges of past discrimination only needed to be eliminated “to the extent practicable.”80 Once a district had complied with this requirement, the district should be declared unitary and local control should be restored by dissolving judicial oversight.
In Freeman v. Pitts, the Supreme Court continued to clarify the requirements for districts to be declared unitary.81 This case was first decided in 1969 when a district court ordered the DeKalb, Georgia, school system to desegregate. In 1986, the district court found that the school system had successfully met four of the Green factors through strategies such as shifting attendance zones and the strategic placement of magnet schools – the court found that the school system was unitary with regard to student assignments, transportation, facilities, and extracurricular activities.82 When the court made this finding, there was still significant racial imbalance in many DeKalb schools. For example, 50 percent of the African American students attended schools that were more than 90 percent African American, while 27 percent of the white students attended schools that were more than 90 percent white. However, much of this racial imbalance appeared due to demographic change. In 1969, 5.6 percent of the students in the DeKalb school system were African American, while 47 percent of the students in the school system were African American by 1986. Reasoning that such imbalances were due to demographic change and stating that the school system had accomplished the maximum practical desegregation, the district court ruled that it would order no further relief in those areas. However, the court stated that the vestiges of a dual school system remained in the areas of resource allocation and teacher and principal assignments.
After reviewing the logic of the district court’s decision, the Eleventh Circuit Court of Appeals found that the district court had erred by considering the Green factors as separate categories. According to the Eleventh Circuit, a school system must achieve desegregation with regard to all of the Green factors at the same time in order to be considered unitary and a school system may not shirk its duties by pointing to racial imbalance in the district.83 However, in an 8–0 decision, the Supreme Court concluded in 1992 that school districts do not need to satisfy all the Green factors at the same time. Once a district has satisfied a Green factor, partial and final withdrawal of judicial control with regard to that factor is warranted. The Court particularly highlighted that racial balance is not to be achieved for its own sake but only pursued when it has been caused by a constitutional violation. Thus, school districts are not required to cure racial imbalance caused by demographic factors. Likewise, federal district courts are not required to make annual adjustments to the racial composition of student bodies once the original duty to desegregate has been accomplished (unless another violation is found). The Court reasoned that it is “beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require never-ending supervision by the courts.”84 Building on this analysis, the Court framed the return of school districts to the control of local authorities as the ultimate objective.85 In doing so, the Court reemphasized the notion from Dowell that courts must evaluate whether school systems have complied in “good faith” with desegregation decrees and that segregation in districts must be “eliminated to the extent practicable.”86
Missouri v. Jenkins, the last of the three major desegregation cases decided by the Supreme Court in the 1990s, also focused on ending judicial oversight over school districts.87 This case had been before a district court since 1977 and centered on the efforts of the Kansas City, Missouri, school district to desegregate its schools. In 1985, the district court determined that segregation had caused a systemwide reduction in student achievement in Kansas City schools and ordered the implementation of a wide range of education programs for all students in the district. For example, the court ordered the school district to reduce the student–teacher ratio, implement full-day kindergarten, expand summer school offerings, and implement a state funded “effective schools” program that consisted of annual cash grants to each school in the district.
Because the district enrollment was 68.3 percent African American and there was no interdistrict violation, the court aimed at attracting white students into Kansas City schools instead of ordering additional student reassignments. To this end, the court approved a comprehensive magnet school and capital improvements plan in 1986. Under this plan, every senior high school, every middle school, and one-half of the elementary schools were converted into magnet schools to provide greater educational opportunities to students in the district and draw nonminority students from private schools and the suburbs. Beginning in 1987, the court also ordered salary increases for instructional and noninstructional staff in the district. From the time these plans were implemented through the early 1990s, the cost ran into the hundreds of millions of dollars for the district and state.
Given these expenditures, Missouri challenged the ongoing implementation of these programs. The state particularly argued that it had achieved partial unitary status with respect to the quality of education programs already in place. The district court rejected the state’s argument, largely because it found that student achievement scores had not risen enough to warrant a finding that the school district had achieved partial unitary status with regard to the quality of education programs. The Eighth Circuit Court of Appeals affirmed the district court’s opinion and looked favorably on its reasoning that the success of the quality of education programs must be measured by their demonstrable effects on student test scores and not the mere implementation of these programs.88
However, in a 5–4 decision, the Supreme Court found that the district court had improperly decided. Reviewing the history of major Supreme Court desegregation decisions and especially highlighting Dowell and Freeman, the Court reiterated that the ultimate inquiry is whether the school district and state have complied in good faith with the desegregation decree and whether the vestiges of past discrimination have been eliminated to the extent practicable. The Court again highlighted the value of local control and emphasized that federal supervision of local school systems was intended as a temporary measure. Framed by this logic, the Supreme Court found that the district court acted improperly by trying to attract nonminority students into the school district through salary increases that would theoretically boost the quality of Kansas City educational programs – in line with Milliken, the district court was not justified in ordering programs designed to attract students from outside the school district because there was no interdistrict violation.
Given the combination of Dowell, Freeman, and Jenkins, district court supervision of desegregation districts began to disappear quickly in the 1990s and continued to do so through the 2000s. For example, eighty-nine school districts in the southern states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, and South Carolina had their desegregation decrees lifted from 2004 to 2009 alone.89 As a partial result, schools and districts began to resegregate rapidly.90 While the share of African American students in majority white schools around the United States was about 44 percent in 1988, it fell to about 30 percent by 2001.91 In the 2003–4 school year, 38 percent of African American students and 39 percent of Latino students attended schools that had at least 90 percent minority enrollment.92 Some states had much more highly segregated school systems. For example, 41 percent of African American students in California attended schools that had at least 90 percent minority enrollment at this time, and the average Latino student attended a school with a 19 percent white population.93 This rapid resegregation was occurring just as the Latino population in the United States was quickly growing. As of 2000, Latino public school enrollment was more than seven million: almost triple what it was in 1968.94 Indeed, as the data discussed earlier reflect, Latino students have been facing similar patterns of segregation to African American students.
Such resegregation has arguably had serious undesirable effects. In 2007, the National Academy of Education prepared a comprehensive report analyzing a range of research on racial diversity in schools into inform the Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1, which is discussed later.95 This report concluded that while white students are generally not hurt by desegregation efforts, African American student achievement can be enhanced by integrated schooling (although the magnitude of this influence can dramatically vary). Moreover, diverse environments are likely to support improved intergroup relations, and under some circumstances and over the long term, experience in desegregated schools increases the likelihood of greater racial tolerance and intergroup relations among adults. So, while the research is complex and nuanced and does not simply indicate that desegregation by itself is an effective strategy for equalizing or increasing students’ educational opportunities, the research does suggest that desegregation can yield substantial educational and social benefits.
Parents Involved in Community Schools v. Seattle School District No. 1
While Dowell, Freeman, and Jenkins heavily emphasized the value of local control to hasten the dissolution of court oversight of desegregation, the Supreme Court doubled back on this reasoning in Parents Involved in Community Schools v. Seattle School District No. 1 (PICS), a case decided in 2007.96 In an effort to combat the school resegregation that was occurring around the country as a result of the desegregation plans that were being lifted and shifting housing patterns in school districts that were never under desegregation decrees, many school districts implemented a range of strategies aimed at integration. These strategies included carefully constructed attendance zones, plans allowing students to transfer to a school in which they are not of the majority race, plans allowing students to transfer to a school on the basis of their socioeconomic status, and the creation of magnet schools to attract students of different races.97
PICS involved two school districts that adopted such strategies. The school districts of Seattle, Washington, and Jefferson County, Kentucky, voluntarily adopted student assignment and school choice plans that involved students’ race to diversify the racial makeup of schools. The Seattle school district, which had never been subject to court-ordered desegregation, had a series of four “tiebreakers” to allocate slots to high schools if the schools were oversubscribed. The first tiebreaker was whether a student had a sibling in the desired school. The second tiebreaker was based on race. The Seattle plan classified students as “white” or “nonwhite” and used these racial classifications to ensure more integrated schools if the racial composition of a school differed significantly from the overall composition of the district. The third tiebreaker gave priority to students who lived closer to the school, and the fourth tiebreaker was a lottery.
The Jefferson County school district used a similar student assignment plan involving a racial classification. The school district had been under court-supervised desegregation until a federal district court declared the school district unitary in 2000. The school district then adopted a plan heavily involving school choice and magnet schools. A fundamental requirement of the plan was that all nonmagnet schools must maintain a minimum African American enrollment of 15 percent and a maximum African American enrollment of 50 percent. At the elementary school level, a student could not be assigned to a school if the school had reached the “extremes of the racial guidelines.”98 Although different federal district and circuit courts decided the cases involving Seattle and Jefferson County, the cases were consolidated when they went before the Supreme Court because of their similar issues.
The Supreme Court’s decision about the use of race in the choice systems was highly divided but ultimately struck down the plans used in both districts. A four justice “plurality” opinion, written by Chief Justice John Roberts, was accompanied by two concurring opinions and two dissenting opinions. The plurality opinion applied the equal protection framework at play in cases such as San Antonio Independent School District v. Rodriguez to decide whether the use of a racial classification in the school choice plans was constitutional.99 The plurality particularly employed strict scrutiny to decide whether the plan was “narrowly tailored” to effect a “compelling governmental interest.” The opinion first concluded that “diversity” was not a compelling governmental interest. The opinion here notably differed from the Court’s decision in Grutter v. Bollinger, a case focused on the constitutionality of affirmative action programs that was decided a few years earlier in 2003.100 In Grutter, the Court found that diversity can be a compelling governmental interest in the higher education setting. However, according to the plurality in PICS, diversity is more important in higher education because this setting requires expansive “freedoms of speech and thought” and occupies a “special niche in our constitutional tradition.”101
The plurality further found that the choice plans in PICS were not tailored to “achieving a degree of diversity necessary to realize the asserted benefits.”102 According to the plurality, the plans were only designed to achieve racial balancing; they were not designed to achieve any concrete educational or social goals that flow from racial diversity. The Court further articulated explicit concerns that racial balancing has “no logical stopping point.”103 Notably, Justice Kennedy only joined part of the plurality’s opinion and thus left key issues unresolved. Justice Kennedy particularly joined the plurality’s conclusion that the choice plans were not narrowly tailored because he was concerned about the mechanical formula used to classify students. However, Justice Kennedy also concluded with four dissenters that diversity could be a compelling governmental interest.
After the Supreme Court decided PICS, it was quickly criticized by several observers. Some focused on the Court’s treatment of empirical research in the case. For example, the education law researcher Michael Heise highlighted that Justices Thomas and Breyer discussed the same empirical research referenced by the litigants and amicus curiae briefs on the educational and social effects of diversity, but they did so to reach very different legal points.104 Moreover, as the education law researcher Danielle Holley-Walker noted, PICS “represents a marked detour from the local control of schools as an important theme championed by the Supreme Court in previous K-12 desegregation cases.”105 In this case, the Court decided to strike down the decisions made by local school districts instead of ensuring that they were provided with more control over education.
Taken together, the Supreme Court’s decisions in the 1990s virtually signaled the end for federal court oversight of desegregation. As PICS reflects, the Supreme Court also made it more difficult for districts to take active steps to integrate racially schools that are not under court supervision. As at least a partial result, schools have begun to resegregate rapidly across the country. Grounded in cases like Milliken and Rodriguez, the Court relied heavily on the idea of local control to justify the withdrawal of federal courts in this area. While the concept of local control was also central to the school choice movement of the 1990s at exactly the same time, the judicial treatment of local control in these cases sharply contrasts with the school choice movement – where local control was used to justify school choice reforms, this concept was used to block continuing education reform in the case of desegregation as opposition to seemingly never-ending judicial oversight grew. So, at least in the context of desegregation, the notion of local control and perceived value of decentralized governance brought a halt to the most long-standing type of large-scale education reform focused on equality.
Conclusion
The principle of local control drove both the expansion and the contraction of large-scale law and policy reforms involving educational equality in the 1990s and beyond. On one hand, some governmental institutions in the 1990s framed local control as the enemy of efforts to leverage greater educational equality. In Dowell, Freeman, and Jenkins, the Supreme Court repeatedly cited the principle of local control as the primary reason to lift judicial oversight over school districts’ desegregation efforts. In these cases, the Court faced the issue of how difficult it is to desegregate schools sustainably when they are located in racially isolated neighborhoods. Indeed, as the costly implementation of desegregation plans for a seemingly unlimited amount of time appeared necessary to achieve long-standing integration in many schools, the Court subtly shifted its focus to whether districts had complied in “good faith” and “to the extent practicable” with the duty to desegregate.
In sharp contrast to the logic underlying the Supreme Court’s treatment of desegregation in the 1990s, the school choice movement was partly founded on the idea that greater local control can enhance educational equality. Grounded in the logic of neoliberal politics that flowered in the 1980s, the school choice movement was based on the idea that schools can offer innovative programs if they are freed from bureaucratic control. Parents and students can then choose to attend these schools if the schools’ offerings meet their needs. Under this structure, traditional public, private, and charter schools would compete with each other, and the quality of all schools would rise as the weak schools shut their doors. It was precisely this logic and the promise of greater educational equality that bound advocate groups for minority rights with more market-oriented groups in support of both vouchers and charter schools. Although vouchers never spread to the extent their supporters had hoped in the wake of Zelman (largely because of vouchers’ religious implications), some of the core political underpinnings of vouchers propelled the quick spread of charter schools. This focus on the potential of greater local control to improve schools for minority students was in fact a major focus of Justice Thomas’s concurring opinion in Zelman.
Despite the convergence of desegregation and school choice around the principle of local control, the institutional arrangements and concrete approaches to reform in both movements were quite different. Desegregation was never an easy reform to implement effectively. There were strong political, legal, administrative, and financial barriers to overcome, to name but a few. However, the problem at hand was ultimately the concrete one of educational access through populating school buildings with students of certain races. At certain points in time (such as the late 1960s and early 1970s), governmental institutions were quite effective in their desegregation efforts. And when the federal courts began to withdraw from desegregation as a result of changing Supreme Court jurisprudence, segregation in schools increased. Although modern empirical evidence about school and neighborhood demographics has revealed that desegregation litigation was largely a failure in creating sustainably integrated schools, desegregation has been a reform focused on educational equality at least involving major outcomes that are fairly concrete.
School choice, however, is ultimately aimed at improving the quality of what actually goes on in schools and classrooms. Like reforms such as standards, accountability systems, and modern school finance lawsuits, school choice is focused on improving teaching and learning at scale. Where many of these other strategies increase governmental control over what goes on in districts and schools, school choice strategies treat education reform as more like a “black box” that can arguably avoid the difficulties other reforms have faced. Instead of directly changing what students learn and how teachers teach, school choice reforms are founded on the notion that individuals and local organizations can and will innovate if given space and freedom from governmental oversight. Given the difficulty of directly instituting reforms in a variety of differently oriented schools at scale, treating schooling as a black box that will naturally adapt to local context is attractive. However, as with other reforms, there is very limited evidence that school choice strategies have consistently had their intended effects and equalized the learning opportunities that students receive. These strategies have even been criticized for exacerbating existing inequalities through processes such as “skimming the cream” from public schools by attracting the best public school students to private or charter schools.
While there is not strong evidence that school choice strategies have in fact diminished the equality of learning opportunities for students of different races or socioeconomic classes, such criticisms point to perhaps the most fundamental difference between school choice and other large-scale reform strategies aimed at educational equality. Most of the other strategies discussed throughout this book reflect the idea that education is a public good. These strategies clearly differ with regard to the content of this good. For example, some strategies frame education as supporting democracy, while others frame education as supporting international economic competitiveness. School choice draws in part from such logic, but this type of reform also reflects the idea that education can be a private good. Charter schools and private schools that students attend through tuition vouchers are free from traditional methods of democratic control and at least in part treat education as a good to be attained by individuals that can help them economically or otherwise as they compete with each other throughout their lifetimes. This philosophy is precisely what drove some of the litigation aimed at school choice, as plaintiffs argued that charter schools were not actually public. Indeed, many have argued that charter schools are “quasi-public” schools at best.106 This type of private good logic lies at the heart of the very theory of action of school choice and drives a vision of educational equality that accordingly differs from that of many other large-scale reforms.
Notably, the focus on individuals instead of groups in PICS reflects this conception of education as well. At first glance, PICS does not seem to square with the logic of local control espoused by the Supreme Court in cases like Milliken or Rodriguez. Given the value the Supreme Court has placed on local control, one might have expected the Court to support locally crafted strategies to integrate schools, such as the racially weighted school choice plans that were at issue in PICS. However, PICS also involved the new legal and conceptual wrinkle of dealing with school districts that were no longer or never were under court order to desegregate. And although the PICS decision was sharply fragmented, it ultimately reflects a view of educational equality that is more focused on the equality of individuals without regard to their race – unlike earlier desegregation decisions that were focused on equal educations for groups of students and often for sweeping public purposes, PICS was focused on erasing the construct of race from the treatment of educational placement decisions and did not clearly recognize the value of the public purpose of diversity.
So, the large-scale educational reforms of the 1990s and beyond that are explicitly rooted in the notion of local control reflect a quickly changing relationship between conceptions of governance structures and the notion of equality. Grounded in the neoliberal politics that flourished in the 1980s, decentralized governance and individual competition powered the ascendancy of local control as a core concept in educational reform strategies focused on equality. In the hands of the Supreme Court, this concept followed the well-trod path that had been laid decades earlier to dismantle the centralized judicial oversight of desegregation – perhaps the most fundamental governmentally driven reform focused on educational equality. But this concept also drove the quick rise of school choice as a pervasive educational reform strategy built on the theoretical power of decentralized authority, competition, and the ability to adapt to local conditions. While the fundamental theory of action and philosophical underpinnings of school choice dramatically differ from those of other major reforms of the 1990s (such as standards-based reform), its implementation has proven similarly problematic as it has demonstrated little capacity to improve schools significantly at scale. Moreover, the legislative focus on actually improving the quality of educational institutions and not simply protecting the rights of individuals and groups accords with that of other concurrent education reforms. In this way, educational reforms emerging in the 1990s and beyond reflect the changing conception of equality as one focused on the difficult challenge of fundamentally transforming schools and districts into highly performing educational institutions.
