A Constitutional right to education would be a win for school choice

A Constitutional right to education would be a win for school choice
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On October 4, a group of Connecticut parents and students announced plans to appeal a federal district judge’s decision in the Connecticut school choice lawsuit Martinez v. Malloy. Dismissing the plaintiff’s claims, the judge indicated that there is no right to equal education opportunity under the federal Constitution.

The lawsuit, originally filed in 2016, challenges Connecticut’s restrictions on magnet schools, charter schools, and school choice. The litigation has brought out a noteworthy feature of the U.S. Constitution — that it does not explicitly mention education. Martinez v. Malloy reflects a new legal strategy, one that enlists the federal government as a check on states that abdicate their responsibility to provide a minimally acceptable education to students. Education reformers and school choice advocates alike should cheer this new legal approach.

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A key reason federal courts have largely refrained from intervening in state education policy is the 1973 Supreme Court ruling in San Antonio Independent School District v. Rodriguez. The high court found that certain failures of Texas’ school funding system did not interfere with fundamental rights under the U.S. Constitution, because education “is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.” This is the case U.S. District Judge Alvin Thompson invoked when he dismissed the Martinez v. Malloy lawsuit in late September.

Thus the task of providing education has, appropriately, fallen to state and local governments. State constitutions and courts set their own clauses and standards for education, giving them the freedom to fund, administer, and evaluate schools in a way tailored to local needs. But that autonomy has also generated a situation where states like Idaho spend less than $6,277 per pupil and others, like New York, more than $18,719 per pupil. Political and legal differences also yield disparities in how individual states disburse federal and state aid, use local revenues, and to what extent they prioritize low-performing schools.

States vary further in how much they value school choice. While 30 allow for public charter schools and place no official cap on how many can be created, 20 others and the District of Columbia enforce some kind of charter cap, and still six others do not allow for public charters at all. Other programs designed to help students at struggling schools such as tax credit scholarships, school vouchers, and education savings accounts have been widely implemented in some states, yet remain underutilized in others.

There simply is no national standard requiring states to deal with underperforming schools or to respond to the needs of struggling students. School choice advocates often say that a student’s success should not be determined by where in a state they are born. Similarly, the Martinez v. Malloy plaintiffs do not want students’ success to be determined by which state they are born in — but right now, it is.

The Connecticut plaintiffs allege that state policies — which prevent the expansion of charter schools, place a moratorium on magnet schools, and restrict inter-district school choice — are a violation of the Fourteenth Amendment, which establishes due process and equal protection rights for all citizens.

Students Matter, the legal nonprofit representing the students, argue that "Connecticut’s actions, which the State knows are causing severe harm to tens of thousands of students of color and those from low-income families, infringe upon the constitutional rights of Connecticut children. Specifically, the challenged laws violate the Due Process and Equal Protection Clauses of the U.S. Constitution.”

By all accounts, including Connecticut’s own data, students in Connecticut’s school choice programs far outperform their peers in traditional schools. Across all grade levels, state charter schools have higher percentages of their students reaching proficiency in reading and math. And yet, ignoring what their own research has shown, the state continues to block more families from accessing proven solutions.

Many other states have been sued multiple times for not providing their most vulnerable students with access to a quality education — but clearly these lawsuits have not done enough.

In 2014, more than one million children nationally were on a charter waitlist. A more recent estimate based on EdChoice polls found that, if it were not for state restrictions, charter school enrollment would be nearly three times larger than it currently is.

If the plaintiff’s claims are upheld in federal appeals court, education reformers could have another avenue for moving state school choice programs forward — an avenue that is desperately needed. Traditional public schools are failing far too many students, and a federally recognized right to education could give further recourse to parents and reformers who just want what is best for their kids.

Christian Barnard is a Young Voices contributor and an education policy researcher with the Reason Foundation, a think-tank advancing free minds and free markets. Follow him on Twitter @CBarnard33.