By  Ray Domanico for the Manhattan Institute

Introduction

American public education is undergoing a seismic change. As more states adopt universal school choice policies, the U.S. Supreme Court continues to define the constitutional rights and limitations of religious freedom and the civic obligations inherent in compulsory education.

In a series of recent decisions, the Court has made clear to states that though they are not constitutionally required to offer school choice to families, they must not exclude religious schools from any choice programs that they choose to adopt. Further, the Court has made clear that public financial support of religious schooling does not violate the Constitution.

In the last two years, eight states (Arizona, West Virginia, Iowa, Utah, Arkansas, Florida, Oklahoma, and Ohio) either adopted universal school choice programs or expanded existing programs through Educational Savings Accounts (ESAs). These accounts provide parents with public funds that they can use to purchase schooling (through, for example, tuition or educational materials), including religious schooling, for their children.

Meanwhile, many other states seem politically averse to universal school choice and to public support for religious schools. (A state is considered to have “universal school choice” if it makes funding available to all families of school-age children, without income restrictions or a cap on the number of students who may participate.) Forty-five states and the District of Columbia have charter school programs in place, all of which exclude religious groups from seeking charter school status. Challenges to this exclusion will come before the courts in the years to come. In 2023, the Oklahoma Statewide Charter School Board approved an application for a charter school to be operated by a Roman Catholic diocese, which would make it the first religious charter school in the nation.[1] This summer, the Oklahoma Supreme Court ordered the school board to rescind the contract. The religious school is appealing the ruling to the U.S. Supreme Court.[2]

In states that adopted universal school choice, the impetus came from a heightened awareness among parents that traditional public schools were not being responsive to their strongly held wishes for the education of their children.

The first notable parental uprising began toward the end of the Obama administration as the Common Core initiative, which had generated bipartisan support in Washington policy circles, met local resistance as it was rolled out in the states.[3] It turned out that local control of school policy, which had always been a bedrock principle of the American system, still enjoyed strong support in much of the country. The Common Core standards and attendant standardized tests met with opposition in many locales simply because they were being passed down from the central government to the state and then on to local schools and districts. Opposition rose from both the political right and the left.[4]

Some parents were further alienated by the Obama administration’s decision to use statistical analysis of racial disparities in student disciplinary actions and the administration’s embrace of alternatives to school suspension.[5] More recently, the Biden administration has written regulations involving itself in controversies over the proper response to new thinking about gender identities, bathroom policies, and school sports.[6] These actions have met with similar resistance.

The lengthy school closures as part of the nation’s response to the pandemic drove a further wedge between the proponents of local control and those who kept raising the bar on the conditions necessary to fully open schools.[7]

The pandemic school closures resulted in more than the achievement losses that are relevant to the current discussion of school choice policy. They also undermined the long-standing notion of compulsory attendance in school. In January 2024, Alec MacGillis documented the sustained rise in “chronic absenteeism among students,” which, he noted, has “nearly doubled between 2018–19 and 2021–22 to 28% of students.”[8] He identifies two issues: educators’ declining to use sanctions to compel parents to send their children to school; and the message that was sent to students during the pandemic shutdowns—that school attendance was not important and that children could stay at home and “play on their computers.”

This abandonment of complying with and enforcing compulsory attendance laws relates to the debate about school choice in two important ways. First, it is a perverse and destructive form of choice—a choice not to send one’s children to school regularly, as required by law. Second, it exposes the failure of the traditional public school district model, which posits that a combination of the state education department and a local district office can design and administer an effective school model without the feedback provided by a functioning market of family sovereignty and diverse choice. If the traditional institutional arrangement cannot be certain of the participation of families and students, its ability to deliver on broader civic and educational goals is questionable.

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The preceding report originally appeared on August 22, 2024 at the Manhattan Institute’s website and is made available here for educational purposes only. This constitutes a ‘fair use’ of any such copyrighted material as provided for in Title 17 U.S.C. section 106A-117 of the U.S. Copyright Law.