Wednesday, November 20, 2019

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Osamudia R. James

Osamudia R. James, Opt-out Education: School Choice as Racial Subordination , 99 Iowa Law Review 1083-1135 (March, 2014) (222 Footnotes)


*1085 Introduction

Osamudia JamesIn her 2003 New York Times Magazine article, “The Opt-Out Revolution,” Lisa Belkin attributed the absence of women from the workplace, in part, to choice.  American women, she said, were increasingly “opting out” of the workforce and choosing to return home.  Ironically, in an article written to highlight the voluntary choices women made regarding their professional lives, the subjects relayed stories about how balancing their professional and childcare obligations was impossible and forced them to quit their jobs.  Belkin's narrative of choice endures, however, because of the way in which choice rhetoric enables society to ignore the pervasive structural obstacles to professional success for many women.

The resonance of choice rhetoric, however, is not limited to gender equality issues. In education, racial discrimination and structural inequality are increasingly ignored as the education system gives broadened “options” to those it underserves, in the form of private schools, charter schools, and voucher programs. Author Paula Penn-Nabrit's decision to homeschool her African-American sons after their racially charged expulsion from school is illustrative. She explained, “[a]s much as we work at being free and conscious people of color, independent actors rather than reactors, the truth is we began home schooling as a reaction to something some white people did to us.”  Ultimately, the circumstances under which she made educational decisions for her children undermined the agency and autonomy of her “choice.”

In 2012, the State of Louisiana gave parents similar false choices. The State passed the most expansive school voucher program in the country, making the state's 400,000 students enrolled in low-performing schools eligible to take their share of state funding to any accredited private or religious school in the state.  Faced with no alternative options for a quality *1086 education in their neighborhood schools, the decisions of these students and their families to “opt-out” of public education?and into school-choice programs that will likely perform even worse than their neighborhood schools  coerced decisions. As in the workplace, the autonomy-enhancing value of opting out of public education is largely a myth.

Even as the charter school movement gains traction in the United States, comprehensive studies reveal that up to one-third of charter schools perform worse than traditional public schools,  and that voucher programs have failed to discernibly impact the achievement gap.  Nevertheless, education-reform legislation, like No Child Left Behind (“NCLB”) and Race to the Top, as well as education doctrine, such as Pierce v. Society of Sisters, Milliken v. Bradley, and Parents Involved in Community Schools v. Seattle School District No. 1, encourage students and their families “to choose” to leave traditional public school education for charter schools, private schools, voucher programs, or homeschooling experiences.  Not all choices, however, are good ones.

Choice rhetoric problematically idealizes competition, privacy, independence, and individualism, while overshadowing interdependence and vulnerability in public education, and outsources conversations that belong in the public sphere to families and individuals. Yet choice rhetoric has endured, due to its sanitizing effect on inequality and vulnerability. Given enough options, the argument goes, if the result of one's selection is problematic, it was only his or her fault. Having provided myriad options, the state is absolved of responsibility for underperformance in any one school district.

Indeed, the turn to school choice as the primary method of public school reform has only accelerated a legal and political trend of ignoring the structural factors that undermine successful public education and maintaining an achievement gap in the public school system. In the meantime, very little has been said about racial and economic isolation. *1087 Such isolation motivates people such as Kelley Williams-Bolar to “choose” to illegally use her father's residential address to enroll her African-American daughters in a safer, higher performing neighborhood school than the one to which her Ohio city assigned them.

Given the role of choice as a foundation of American liberal thought, its dominance in public school reform is no surprise, nor is its presentation as the answer for poor, working class, and minority students novel. What policymakers have insufficiently explored, however, is the particularly racialized constraints under which people of color exercise choice in the education system. Encouraged by pundits and policymakers to demand choice, and ever mindful of the cultural-deficit models that will place blame for failure squarely at their feet if they do not leave the traditional public school system, minority students increasingly enroll in the programs. But as students and parents demand more options, school-choice policies undermine the coalitions that stakeholders could otherwise form to address the real obstacles to academic achievement?segregation by race and class, food and housing insecurity, and inadequate school financing. Ultimately, choice does not provide the promised liberation.

Opting out of the public school system is by no means a phenomenon limited to minorities, a reality to which wealthy Whites at private schools across the country can attest. My focus in this Article, however, is on the increasing frequency with which people of color attempt to opt-out of the public school system in response to racial and economic isolation that leads to lowered academic performance in their traditional neighborhood schools. In order to provide a richer and more substantive accounting of the impact of school choice and choice rhetoric on marginalized people in the education system, this Article moves past typical market-informed critiques of choice. I analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system and the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes. Students of color and their families may indeed be “opting out” of traditional public education, but those decisions neither improve their educational outcomes nor represent manifestations of genuine choice. This Article also argues that the values underlining school choice and choice *1088 rhetoric, like privacy, competition, independence, and liberty, are inherently incompatible with the public school system.

Part I traces the path of school choice in public education, from its origins in Pierce v. Society of Sisters to its mainstream manifestations as voucher programs and charter schools. Part II examines the impact of race on the school choice market before presenting critical examinations of school choice and choice rhetoric that the literature has not fully developed. Even assuming broadened options, the actual choices of people of color in an education market are constrained by the absence of viable alternatives, the impact of cultural-deficit models in education policy, and the trauma of racialized schooling experiences. Part II also presents school choice as inherently incompatible with the democratic values that should undergird public education, particularly to the extent that it sanitizes unequal access to the societal good of education. Part III advances discourse about effective school reform by suggesting a drastic limit to school choice through compulsory, universal public education if necessary. Part III also suggests a more appropriate rhetorical framework for structuring school reform in public education and responds to potential concerns regarding paternalism.

I. The Rise of “Opting Out”: School Choice in Education Reform

Calls for public education reform are not new. Predating the 1983 declaration by the Department of Education Commission describing a “rising tide of mediocrity” in U.S. public schools, politicians and concerned citizens alike have long expressed concerns regarding a “crisis” in public education.  Whether or not a crisis exists, there are certainly a number of critical issues to address. The black-white achievement gap, in particular, mirrors a multitude of other academic gaps between America's privileged and marginalized student groups. In addition to testing disparities, American public schools are more segregated by race than they were at the time of Brown v. Board of Education, with Blacks and Latinos increasingly attending schools in hypersegregated areas.  The racially identifiable minority schools created by hypersegregation not only result in schools with *1089 higher rates of students living in poverty,  but they are also subject to racist attitudes, behaviors, and policy?all of which negatively impact student achievement.

Other concerns regarding public education include: the rise of standardized testing,  said to narrow curriculums and encourage cheating, particularly in those underperforming schools that “teach to the test” in an attempt to improve performance and thus avoid sanctions for low scores;  *1090 the development of a school-to-prison pipeline, as students increasingly encounter the criminal justice system for the first time on school campuses;  outdated curriculum and teaching pedagogy;  and hostile politics regarding labor conditions for teachers.  Despite research suggesting that most Americans believe their local schools to be doing a good job (in contrast to those “other” schools that are failing),  there is, indeed, much to reform in American public education.

In recent years, lawmakers have proffered legislative frameworks like NCLB and Race to the Top as responses to perceived and actual failures in the system. Race to the Top, in particular, has helped usher in a particular type of education reform strategy: school choice. Welcomed by both conservatives and liberals alike, policymakers have presented school-choice programs as a solution for the many ails of the system?mediocrity, the achievement gap, and disappointing standardized test performance in comparison to other developed countries.  School choice has become mainstream, even as the marketplace in which education choices are said to be exercised is exposed as a myth and school choice fails to improve academic outcomes.

*1091 A. The Origins of School Choice: Pierce, Milliken, and Markets

Choice is deified in American culture; a central tenet of American liberal thought is the exaltation of liberty  freedom to choose one's lifestyle, values, jobs, and relationships without government interference.”  Eschewing any commitment to particular outcomes, the ideology focuses on maximizing the opportunity of individuals to exercise rational  and unfettered choice. Maximized choice, as the idea goes, leads to genuine freedom and equality.

The centrality of choice is apparent in American social, political, and legal culture. President Obama's focus during his first two years in office, for example, was on healthcare reform, shrouded in “rhetoric about choice, freedom, and personal responsibility.”  Debates about women's reproductive rights focus only minimally on reproductive rights as a precursor to equal citizenship.  Instead, choice rhetoric pitting the freedom of women to exercise choice regarding their reproductive abilities, against the liberty, freedom, and even equality of her unborn child, dominates the debates.  In addition, choice features prominently in American legal doctrine. Choice is identified alternately as “assent, consent, [or] free will,” and it forms the basis for countless doctrines in contract law, criminal law, First Amendment law, and privacy jurisprudence.

In public education, school choice originated with Pierce v. Society of Sisters, a 1925 Supreme Court case in which the Court recognized both a state's right to compel school attendance at some schools and parents' rights *1092 to choose between private and public schools.  Subsequent cases built on the principles of choice and parental control as articulated in Pierce. For example, even though the Court noted in Wisconsin v. Yoder that compelling state interests could overcome the individual interests of the Amish in controlling their children's education, the Court ultimately exempted the plaintiff-parents from Wisconsin's final two years of compulsory school attendance laws.

Years later, in Milliken v. Bradley, the Supreme Court refused to impose an interdistrict integration order, even though such a plan was the only way to remedy the state-sanctioned segregation that had undermined Detroit city schools and encouraged white flight to the suburbs.  Having earlier refused in Keyes v. School District No. 1 to acknowledge that de facto segregation (perpetuated by white flight) resulted in the same equal protection harms caused by de jure segregation,  the Supreme Court in Milliken rationalized a segregated result where a constitutional violation in the form of state-sponsored segregation had occurred.  Milliken stands out as a notable example of choice in education, not because it affirmed an explicit school-choice policy, but because it further protected the choices of privileged parents to escape to the suburbs and ultimately avoid participation in state-ordered remedies to dismantle the segregated system that had conferred racial privilege on them.  While protecting those choices, the Court *1093 ignored the absence of choice among poor parents and families within the city, who had little ability to move to the suburbs, and who were left with precious few options, given that both remediation of de facto segregation and interdistrict remedies were unavailable.

Scholars have since detailed various forms of school choice, breaking choice down, for example, into “market choice” and “public choice.” The former refers to the use of vouchers for private, charter, or alternative public schools in an attempt to manipulate the education marketplace; the latter refers to choice programs within the public school system only.  Less visibly, choice also manifests as patterns of residential housing segregation, which parental concerns regarding public schools often inform. Using the “constitutional values” articulated in Pierce, proponents of choice justify market and public choice as expressions of the moral and legal right of parents to leave the school system.

At the same time, market-economics principles are also used to justify vouchers, charters, and housing decisions. Based on the idea that a marketplace is the ideal way in which to allocate resources, market economics in education imagines the field as an arena in which “each individual . . . would be led as if by an Invisible Hand to the grand solution of the social maximum position.”  Economists admit that the gap between the ideal and the real world is wide, making it difficult to completely provide public education through a market structure. Nevertheless, free market economists maintain that public schools allocate education resources poorly due to several factors including a lack of information, an inability to know or calculate the benefits of potentially competing schools, and the “free-rider problem”--the tendency of individuals to understate their real preferences for public goods because the non-excludability of the goods incentivizes those individuals to enjoy the goods while avoiding the associated tax burdens.  In contrast, private schools and charters are arguably closer to the market ideal because parents who send their children to an alternative *1094 school face fewer barriers to collective action than parents of children in public schools.

In a foundational article, however, the economist Charles M. Tiebout theorized that, assuming specific conditions are met,  local government could represent “a sector where the allocation of public goods (as a reflection of the preferences of the population) need not take a back seat to the private sector”  due, in large part, to the ability of citizens to vote with their feet by moving to a community that best suits them. Although all conditions are rarely met,  the theory suggested that the closer society approaches all optimal market conditions, the more efficient the distribution of public resources will be.

In order to maximize efficiency in distribution of education, free-market theorists say the sector should be made more like an ideal market by maximizing individual parental choice in education. Interest in the idea intensified when political scientists John Chubb and Terry Moe published Politics, Markets, and the Organization of Schools.  Proceeding from the questionable  thesis that institutional structures or the environment dictate school effectiveness,  Chubb and Moe identified several characteristics of public schools that supposedly undermine their academic performance: (1) public schools are subject to a “huge and heterogeneous” constituency, of which students and parents are only a small part; (2) control of public schools is essentially a local monopoly; (3) democratic control in public schools serves to “impose higher-order values on schools,” limiting school autonomy and the ability of parents to exit; and (4) “[p]ublic schools are products of [collective] public policy,” subject to never-ending change.  

*1095 In contrast, private schools: (1) “determine their own goals, standards, and methods,” efficiently reflecting the values of owners and customers; (2) present exit options that allow parents to find schools with “offerings . . . more congruent with their needs,” forcing “strong bond[s] between consumer satisfaction and organizational well-being”; (3) present exit options that further promote harmony, responsiveness, and school autonomy; and (4) engage in reform when it is in a school's best interest to do so.  Applying Tiebout's theory to education, the authors concluded that a voucher system, “combining broad democratic guidance with a radical decentralization of resources and choice,” was a reasonable alternative that would make public schools more effective.  Although voucher programs did not gain widespread acceptance immediately, these theories effectively laid the groundwork for school-choice programs, spurring both further support  and sustained criticism  in the years since.

B. School Choice Becomes Mainstream

In its current incarnation, school choice is manifested most typically as voucher programs and charter schools. The former provides students and their families with tuition “vouchers that can be used at private schools, including religious schools.”  Although promoted as providing an opportunity for poorer students to escape failing schools, the “vouchers rarely meet the tuition of academically competitive private schools, religious or otherwise.”  In contrast, charter schools are publicly funded, *1096 nonsectarian entities that operate pursuant to a contract between the school and the chartering agency, and they are freed from state regulation in exchange for performance accountability.  Although they can be operated by any entity, including teachers or parents, private corporations increasingly operate the schools.  To the extent that neither charters nor vouchers comport with the pattern of public school assignment and enrollment through which school districts assign students to a neighborhood school based on their address, they both deviate from traditional public school programs.

In the 2009 and 2010 school years, approximately 5,042 charter schools served 1.5 to 1.7 million students across the United States, while annual growth remained steady at about 9%.  Between 2005 and 2010, enrollment in traditional public schools declined by 5%, while enrollment in charter schools rose 60%.  Moreover, twenty-one states have independent or multiple authorizers that can approve and manage charter schools, often alongside school boards.  Unsurprisingly, states with multiple charter authorities have 78% of the nation's charter schools--almost three-and-a-half times more charter schools than states that allow only for local school board approval.

Legislatively, both NCLB and Race to the Top are key pieces of federal educational reform legislation that feature school-choice policies. NCLB not only sets guidelines and requirements regarding teacher qualification, *1097 annual testing,  and annual yearly progress (“AYP”) goals for public schools,  the Act also subjects Title I schools that fail to meet the AYP goals to a range of actions.  After two consecutive years of failure, students in failing schools must be allowed to choose another public school, including charter schools, within the same district; after five consecutive years of failure, schools are forced to “surrender control” to the state, which can reopen the school as a charter company, turn it over to a private management company, or take over the school itself.

In 2009, the Department of Education launched Race to the Top, a federal competition that awards funding on the basis of the adoption of articulated guidelines. Although most of the guidelines were fairly broad, one guideline in particular awarded 40 out of a possible 500 points for states that “ensur[ed] successful conditions for high-performing charters and other innovative schools.”  The move encouraged several states to pass legislation making it easier to establish charter schools.  Although federal law has not explicitly encouraged vouchers, large voucher programs have been implemented in several states, including Wisconsin (Milwaukee), Florida, Ohio (Cleveland) and Louisiana, with Louisiana's program described as the most widespread voucher program in U.S. history.

School choice even has support in popular culture. Movies like Waiting for Superman and The Lottery presented largely uncritical examinations of *1098 charter school programs, portraying them as the answer to failing schools and villainous teachers' unions. Celebrities and public figures, like Bill and Melinda Gates  and music star John Legend,  have also publicly supported charter school programs.

Scholars have either conceded to or outright embraced school choice, discussing ways to make its implementation most palatable rather than interrogating the fundamental premises on which school choice is based. Although acknowledging that each “seductive” wave of school choice has historically been characterized by elements that undermine both equality and democracy,  scholars nevertheless conclude that “school choice itself is not bad” and “can be a vehicle for valuable reform for parental and community engagement, and for educational innovation.”  Scholars make this claim despite the reality that many of the ideals school choice promotes--including individual liberty and market competition  arguably completely inappropriate in a public school setting.

Public education reform has historically been filtered through a social justice framework with a focus on equality and justice in the public school system, as well as a community and state commitment to quality education. Rhetoric concerning public school reform today, however, conveys themes *1099 not only about choice among options, but also about independent and private family decisions, competition, and parental control. Indeed, some scholars now take it as a given that individual school choice is not only an integral part of education reform, but also an inherently equitable one, and these scholars make recommendations on how to implement school choice so that it is most successful.  Others investigate the practical realities of its implementation,  while still others conclude, after critique, that charter schools and voucher programs nevertheless have a place in the public school system.

The American public, like academia, has largely embraced school choice. In addition, school choice has dominated the agenda of some of the country's most visible advocacy groups. The civil rights agenda of the NAACP, for example, has been deeply invested in charter schools because they are promoted as a means of social and economic integration,  although the investment has, at times, put the organization on the defensive with its constituency.  Both white and non-white Americans have, by and large, embraced charter schools in their communities.  Survey companies *1100 characterized the years 2010 and 2011 as “among the very best years school choice has yet enjoyed.”

In 2011, a Time article asked: Are these the end of times for charter schools?  The growth in political strength and popular support for charter schools, however, suggests anything but. Indeed, contrary to predictions in the late 1990s that choice would “remain a marginal phenomenon in education,”  the movement has gathered speed and become a central principle--if not the principle--of the education reform movement. The growing chorus of policymakers who have concluded that charter schools are the answer to failing educational systems illustrate adherence to this principle.  For example, in addition to its expansive school voucher program, the Louisiana legislature successfully passed a series of reforms significantly broadening charter school authorization powers.  Under one law, students in low-performing schools are entitled to take their share of state funding to any accredited private or religious school in the state. Although 400,000 students are eligible for transfer, there are only 5,000 schools authorized to receive them  reality that will almost certainly be used to justify the creation of additional school choices.

Yet, the rise of school-choice programs and policies is curious given its failure to actually improve academic outcomes. The most comprehensive *1101 study to date, conducted by the Center for Research on Education Outcomes (“CREDO”), drew on data from a longitudinal study of the impact of charter schools on over 70% of students enrolled in charter schools in the United States. The study concluded that although 17% of charters provide superior educational opportunities, almost half produce results that are no better than traditional public schools, and 37% deliver results that are worse than traditional public schools,  a conclusion that numerous other studies supported.  While the CREDO study found that the effectiveness of charter schools varied widely by state, other studies have found that choice policies can exacerbate existing problems of educational organizations.  The CREDO study also found that charter schools have different impacts on different groups of students; Blacks and Latinos, in particular, experienced significantly worse learning gains than their peers in traditional public schools experienced.

*1102 II. School Choice as Racial Subordination

Despite the absence of positive outcomes, particularly for students of color, the appeal of school-choice programs continues to broaden, as reflected in the expanding size and scope of voucher programs, charter schools,  and parental trigger laws.  Given the unexamined “benefits” of school choice, this Part presents less-explored critiques of the legal, moral, and pedagogical legitimacy of choice and choice rhetoric in education reform as advanced through charter schools and voucher programs. To be clear, choice in the abstract is not problematic. Quite the contrary, genuine choice--which entails realistic options and the preparation and opportunity to pursue those options--can be integral to self-actualization, dignity, and equality. What this Article seeks to critique, however, is the application of choice themes in public education, where race and identity will warp and ultimately impede a properly functioning education market where choices are presumably exercised.

In addition to the problematic impact of race on the education market, choice also masks racial subordination in public education in the form of unreasonable educational alternatives, education policy problematically informed by cultural-deficit models, and negative-racialized schooling experiences. Moreover, school choice forces parents and caregivers of color to bear the burden of reform, thus shifting responsibility from the state to individuals when choice fails to improve educational outcomes. Ultimately, the rhetoric of individualism, independence, and liberty that permeates school choice distracts stakeholders from addressing larger societal issues. Race, class, and identity will necessarily impede genuine choice in the *1103 education system and undermine the democratic values of citizenship and equality that should inform public-education policy.

A. Race and the School-Choice Market

Choice rhetoric contemplates the sphere for reformed education as a market. The commodification of education in this way has prompted no shortage of critiques identifying the ways in which the conditions for a properly functioning education market are difficult--if not impossible--to dictate.  Problems with an education market, however, go beyond the mere *1104 absence of ideal market conditions. Rather, the problems extend to the ways in which race and racism warp the market, undermining the possibility that an education market could ever genuinely optimize educational outcomes for marginalized students and families in that market.

As an initial matter, the choices of poor, working class, and minority students and their families in the education market are severely limited.  Community bias against these groups, for example, is often reflected in local policies like zoning for multi-family housing that can limit access to particular schools--charter and voucher schools included. Input and influence of marginalized communities regarding charter school policies (including school offerings, the number of schools, location, and themes) is subject to the same limitations that undermine these groups in any political process.

Information asymmetry and unequal bargaining power also undermine the market for parents of color. Marginalized minority parents, in particular, often do not have ready access to the data and information that would enable them to make good schooling decisions. Moreover, minority parents are often on unequal footing when they engage with school systems, given the pervasiveness of cultural-deficit theories that demean and devalue minority parental participation in their children's education.

The idea of the “rational parent” as an actor in the education marketplace, who is able to choose the best educational option for his or her child, is a myth-- even if one assumes genuinely broadened options, better information, and increased bargaining power. Although parents assert that they care most about academics, studies suggest that even after controlling for educational programming and performance, parents use heuristics--namely race--when making school choices.  In one study, for example, an increase of more than two percent in the African-American student *1105 population correlated with a parental perception that school quality had declined, even when objective evidence contradicted that perception.  Allowing parents to self-segregate within schools in this way is a “successful,” but undesirable, optimization of parental preferences. Moreover, a market in which parents select schools based mostly on racial composition, instead of objective measures of academic excellence, is not really an education market, but rather a racialized social market playing out in the sphere of public education. The education market, legitimate or illegitimate, is not an arena in which rational decisions about education take place. An education market also encourages “exit,” a pattern in American public education that is most problematic for vulnerable students and families of color. Although Chubb and Moe ignored this possibility, in addition to affecting firm behavior by exiting, consumers can affect firm behavior by staying put and voicing their complaints.  By enabling school exit through choice, however, school-choice policies encourage education connoisseurs--those parents who get the highest degree of return for each increment of quality--to rapidly leave a school or school system, thus accelerating decline as the parents and families lacking voice are left behind.  Absent choice models, underperforming schools may, indeed, lack the discipline of exit. An education market, however, also frees these schools from the discipline of voice. Losing the voices of education connoisseurs who could advocate for the improvement or maintenance of school quality harms poor and minority schools and school districts most in need of this economic and social capital.

Finally, there are questions about the impact on education of the market model itself. Michael Sandel argues that “[p]utting a price on the good things in life can corrupt them . . . because markets . . . express and promote certain attitudes toward the goods being exchanged.”  Although the market conception of education does not go so far as to charge for school enrollment, the so-called “education market” nevertheless imports the value of commercialization, thus changing the meaning of public education.

In an education market, administrators no longer consider students and families as community members. Competition for students turns them into mere customers to be captured along with their share of state funding. *1106 Students and families also become distanced from teachers and administrators as members of a community, viewing them instead as salespersons trained to attract their business. A market mindset transforms education from a collaborative endeavor to one where students and parents only passively participate in their education as consumers who have made their choice and now wait to be served.  In the end, the commercialization of the education process alienates individuals from the community nature of public schooling.  The process of exercising choice might make parents and students feel more autonomous, but it ultimately degrades the societal understanding of public schooling as an exercise in citizenship and democracy and erodes the sense of community obligation to others.  Arguably, an abdication of obligation to community propelled the abandonment of urban schools that Milliken sanctioned and which continues today.

B. When Subordination Is Presented as Choice

Problems with school choice, however, go deeper than a critique of market conditions. In addition to market circumstances that limit the decision making of minority groups in education, marginalized groups' schooling choices are also socially constrained and influenced in racially subordinating ways. School-choice policies mask this form of racial subordination.

*1107 1. The Absence of Reasonable Alternatives

American parents and caregivers have historically been consistent in their preference for public neighborhood schools.  Moreover, despite doomsday predictions regarding the system's demise, Americans are generally satisfied with their own neighborhood schools, believing that only other schools have the problems that plague the system more generally.  Given the failure of charter and voucher schools to educate students any better than traditional public schools, and the fact that in many instances they do a poorer job, it is surprising that policymakers adopt school-choice programs as often as they do. Consider further the deleterious consequences for communities and students when they are displaced by the closure of neighborhood schools in favor of charter and voucher expansion  and it is a wonder that poor and minority students so disproportionately select school-choice options at all.

One explanation is the lack of reasonable alternatives. For racial minorities, access to quality public schools is not nearly as assured as it is for many white students and their families. Take the case of, for example, special education, where minority schoolchildren in the public school system are overrepresented. Although intended to address learning difficulties, special education in public schools often isolates, stigmatizes, and widens the achievement gap,  making the over-identification of *1108 minority students for the programs particularly problematic.  Black schoolchildren are also underrepresented in “hard” disability categories like deafness or blindness--the least stigmatizing educational disabilities for which assessment is most objective.  In almost every state, however, black schoolchildren are over-identified in the more stigmatized “soft” categories that are assessed more subjectively, like educationally mentally retarded (“EMR”) and emotionally disturbed (“ED”).  And poverty rates or exposure to environmental hazards do not explain the disparities.  Special education in public schools, then, is often used to segregate and degrade minority school children.

In the same vein, Blacks are also overrepresented in public school suspensions and corporal punishment,  with schools more likely to implement extremely punitive discipline and zero-tolerance policies, and less likely to use mild discipline and restorative techniques, as the percentage of black students enrolled increases.  Not only do these relationships operate independent of economic status, gender, crime salience, urban residence, and teacher training, but the relationship is also stronger when school delinquency and disorder is lower.

Majority-minority schools also face discrimination that operates independent of poverty levels among the schools. This discrimination includes the disproportionate assignment of novice teachers to the *1109 schools  and higher rates of teacher exit even after controlling for poverty.  Minorities in the school system also encounter racial and economic isolation that imparts a profoundly negative effect on academic achievement, increased violence and peer bullying, and inadequate school financing.  Given the challenges that minorities face in public schools, it is not at all surprising that these parents, who are as attached to the idea of neighborhood schools as any other demographic group, would decide to utilize charter and voucher programs that nevertheless fail to improve academic outcomes. The failure of school-choice policies to address the issues that lead to the minority achievement gap in traditional public schools only serves to underscore the false choices presented to minority parents. These parents could only be said to have truly preferred a choice school if they had access to quality neighborhood schools to begin with and were relatively confident that their students would have positive, affirming experiences therein.

2. The Impact of Cultural-Deficit Models

Experiences within the school system itself also shape and influence the perspective that families of color have about the public school system, driving their desire to opt-out of traditional public education. Cultural-deficit theories, in particular, have significantly affected education policy and the interactions of students and families in the education system. Cultural-deficit theorists in education characterize a “child's social, cultural or economic environment as being ‘depraved and deprived’ of the elements necessary to ‘achieve the behavior rules . . . needed to’ academically succeed” and advance “the idea that social and emotional deficiencies [negatively] affect student performance within the academic system.”  The *1110 theory has received sustained criticism for catering to ethnocentric perspectives--Euro-American perspectives, in particular--and has been supplanted by subsequent theories that characterize academic underachievement not necessarily as the function of a cultural deficit on students' parts, but as the result of external interactions and structures that shape educational experience.  Cultural-deficit theorists, for example, characterize academic underachievement as the result of “teachers and students playing into each other's cultural blind spots,” while cultural-ecological theorists focus more on macro-ethnographic findings, which reveal that certain variables create barriers for some underachieving groups, keeping them in a position of subordination within the public school system and in society more generally.

Most notably, scholars have repeatedly discredited cultural-deficit models in education because the models perpetuate the proposition that poor and minority groups do not value education in the same way as middle- and upper-class people and/or Whites.  In addition, cultural-deficit models *1111 fail to question how education policies--including tracking, high-stakes testing, inadequate school financing, and school segregation by race and class--contribute to the academic achievement gap.

And yet, cultural-deficit theories endure, informing educational policy, influencing jurisprudence regarding education, and animating education reform.  NCLB, with its focus on standardization and high-stakes testing, still focuses on the failures of students, while failing to address structural conditions and inequities that drive the achievement gap--poverty, funding and resource inequity, and racial, social, and economic isolation.  Similarly, the theories encourage teachers and administrators to exclude minority parents in decisions and planning, especially regarding early childhood education  and special education.

Several federal court decisions also illustrate the jurisprudential durability of the cultural-deficit model. By declining to hold the state accountable in Milliken v. Bradley for structural dynamics that allowed Whites to escape to the suburbs while trapping Blacks in an increasingly *1112 impoverished inner city, the Court failed to acknowledge how factors external to minority culture and values undermine academic achievement.  Rather than acknowledge the state's role in creating the isolation, the Court instead affirmed the remedy chosen to address lowered academic achievement among minority students caused by economic isolation and highlighted as exemplary parts of the remedy that responded to cultural deficits among black students.  Similarly, when lifting desegregation decrees in Missouri v. Jenkins,  the Court failed to even affirm a school's role in addressing the achievement gap, stating that the black academic achievement gap in Kansas City was more likely due to external factors beyond the control of schools and, as one commentator noted, “impliedly within control of students, their families, and cultural communities.”

Subsequent federal cases did not deviate from a pattern of ignoring structural reasons for the achievement gap.  Having failed in Parents Involved in Community Schools v. Seattle School District No. 1 to acknowledge equity as a compelling interest, the Court implicitly reaffirmed the centrality of cultural-deficit models in education by maintaining as actionable only the traditional justification for race-conscious remedies: intentional discrimination and the impact it has on the psychology of minority schoolchildren.  In doing so, the Court ignored structural constraints on minority schoolchildren that undermine academic achievement as much as, if not more than, internalized notions of inferiority.

*1113 Legal decisions and educational policy do not occur in vacuums; rather, they influence the behavior of those about which the cases and policies are concerned. Moreover, there is no shortage of commentary that blames parents for problems created by structural issues beyond parental control.  Accordingly, cultural-deficit theories--close cousins of the “pull yourself up by your bootstraps” mantra--deeply impact minority parents  in the school system by placing responsibility for academic achievement exclusively at their feet.  At the same time, choice rhetoric in education suggests to parents that there are better and worse alternatives, that other parents are choosing, and that they had better be choosing as well, lest they be left behind. As the availability of choice policies validate parental suspicions regarding the quality of traditional public education, they also amplify cultural-deficit theories, which suggest that community schools in minority areas will never be capable of providing quality education. Given parental *1114 preference for esteem among their peers,  minority parents are just as eager as any other group of parents for their peers to view them as valuing education and making the right educational decisions.

Choice-rhetoric and school-choice policies exploit the desire to maintain esteem by suggesting that academic achievement is strictly a product of educational decisions: if education is important to a parent, and that parent's child is enrolled in a failing school, that parent can and should opt-out. And, if that parent does not opt-out, that parent--and only that parent--has failed the child. The message encourages those with economic and social capital to remove their children from neighborhood schools--placing them in private schools, charter schools, or more privileged school districts--even if they would otherwise be inclined to remain in their neighborhood school and collaborate with district administrators to improve it. Those with social capital, but not necessarily the financial means to move to richer districts or enroll in private schools, leave for the charter, magnet, and other school-choice options offered within the district, even if the move within the district does not actually alleviate the racial and economic isolation to which their child is subject.  In both instances, students and parents with the most capital, and therefore the greatest ability to demand meaningful reform within their neighborhood schools, exit. This leaves behind children and families who have less power in the school system.

3. Running To--And From--Racialized Schooling Experiences

In describing her decision to homeschool her black sons after a series of negative racial incidents at her sons' school, author Paula Penn-Nabrit explained: “[T]he truth is we began home schooling as a reaction to something some white people did to us.”  Penn-Nabrit's experience is not *1115 unique; minority students are often subject to highly racialized educational experiences that push them out of the public school system.

Responding to the fallout from a failed integration model, minority parents increasingly, and understandably, turn to affinity charter schools organized around a commitment to celebrating a particular race or ethnicity. Scholars have long chronicled the high social costs of integration for black parents and their children, concluding that the elimination of black public schools, as a result of integration, “has had a devastating impact on African American children--their self-esteem, motivation to succeed, conceptions of heroes or role models, respect for adults, and academic performance.”  Moreover, the failure of integration to close the achievement gap, the white flight that many desegregation plans prompted, and the negative racial incidents to which students of color are subjected in supposedly integrated school settings has prompted some to “reinterpret the constitutional imperative of Brown as requiring equal access to quality educational programs,” rather than requiring racial integration of public *1116 schools.  Against this reinterpretation, charter schools have stood out not only as opportunities to provide more positive educational experiences for minority schoolchildren, but also as a way of maximizing minority parent involvement in response to cultural-deficit models that shut them out.

In accordance with the use of charter schools for these purposes, not only are the majority of charter schools found in inner-city areas disproportionately inhabited by families of color, but minority schoolchildren enroll and attend the schools at disproportionate rates compared to white children,  resulting in higher rates of segregation in charter schools compared to nearby public schools.  Moreover, the number of black church schools and academies has skyrocketed, with advocates calling on black educators and political leaders to “increase . . . the number and type of programs that are available.”  Scholars increasingly argue that pursuit of racial diversity in schools has come at the cost of equal educational opportunities for minority students,  while civil rights organizations have become so invested in the promise of charter schools that internal conflict has erupted over the future of the schools.

*1117 Indeed, affinity schools present a conundrum. Segregation in public schools resulted in racial and economic isolation that reinforced subordination. The experience for isolated minorities in integrated schools, however, has perpetuated the same. Accordingly, a turn to affinity charters or charter schools that are increasingly segregated may be the embrace of racial isolation as a virtue rather than a vice.  In this sense, it is the exercise of parental choice in pursuit of what some parents may believe is best for their children, and it is not necessarily different from those parents who choose religious or same-sex schools that align with personal values.

Even assuming, however, that the schools offer the parental involvement and cultural support that families and scholars envision, it comes at a high cost--likely even higher than the toll that the failures of integration may have taken on minority children. School-choice plans only compound the de facto school segregation that makes American public schools more segregated now than they were at the time of Brown v. Board of Education.  If the point is merely to maximize parental involvement, then charters may, indeed, provide a service. But if we acknowledge, as we must, that the drivers of underachievement in schools are concentrated poverty and isolation of students by race and class, then charters do little more then give parents more say in socially, politically, and fiscally vulnerable  schools, at the expense of the democratic and anti-subordination values that integrated schools impart.

*1118 Moreover, the failures of integration have had more to do with failures of implementation and the obstacle of problematic court decisions than with the inherent failures of the concept of integration itself. Second-generation segregation within integrated schools, for example, has been cited as a major reason why integration plans have not closed the achievement gap in ways that policymakers had hoped.  When integration plans are successfully implemented, the result is socially and academically beneficial for students of color as well as white students, who become more aware of, and thus more likely to affirmatively reject, social, cultural, and racial biases, thus preparing them to better participate in a democracy.  In contrast, charter schools have failed to produce the academic achievement promised, functioning no better, on average, than traditional public schools; affinity-based charter schools have been no exception.

Finally, the turn to affinity charter schools is not merely an abandonment of traditional public schools, but also a capitulation to the racism and classism that encourage minorities to choose the schools in the first place.  The separation of equals, even with the best of intentions, nevertheless suggests that mixing would contaminate someone, or something.  Indeed, scholars have noted that, given the historical--and enduring--meaning of racial segregation, government-sponsored separatism, even under conditions of relative equality, stigmatizes citizens. *1119 Internationally, segregation by race continues to “exist[] in an inverse relationship with emancipation.”  As last-resort responses to racism and classism, the turn to affinity charter schools can hardly be said to be genuine choice at all. Rather than represent genuine preference among parents and caregivers, school choice merely glorifies the limited and less desirable choices of people of color.

C. When Subordination Is Presented as a Democratic Value

Choice policies also undermine democracy. Public schools are about the public--a community invested in educational learning outcomes for children of that community. School-choice policies and rhetoric, however, promote competition, individualism, and subordination. Not only are these values inherently incompatible with a successful public school system, but their promotion also allows the state to abdicate responsibility for public education, while shifting blame for widespread structural problems to individuals. Although these choice values are promoted in furtherance of democracy, they actually undermine equality in a democratic project by rendering minority students and their families socially and politically vulnerable to racial subordination through the public school system.

1. Competition

The market model of education on which school choice is based encourages schools to ensure their success in the market by successfully competing for parent-consumers. Competition in education, however, produces neither growth nor accountability. Successful schools are notoriously difficult to grow or replicate, as public schools do not operate with the economies of scale that generate expansion in the private sector. Schools are unique social systems that cannot merely be imitated to achieve success; “[s]chooling is a retail, not wholesale business.”  Moreover, in an attempt to dominate the market in which they are increasingly asked to compete, schools resort to a multitude of problematic behaviors, including: cream-skimming the best students for enrollment, “teaching to the test” at the expense of substantive education in an effort to produce high test scores,  and investing in facilities and appearance instead of in quality *1120 instruction. In addition, traditional public schools lose money when students enroll in charter schools, encouraging tactics that not only compromise the integrity of the schools but that also lead to layoffs and school closings in already destabilized neighborhoods.

Another negative effect of competition is the scapegoating that occurs as charter and public schools, refusing to work together, each blame the other for academic failure.  States get into the action by responding to competition from charter structures in neighboring states. States that neighbor other states with strong charter school regulation, for example, are more likely to pass weak charter regulation in order to secure a competitive advantage.

Schools that face charter competition frequently replace administrators and abruptly change curriculums,  which causes academic disruption and a loss of continuity. Although one might conclude that these replacements are reasonable if administrators cannot maintain competitiveness, the match-ups between traditional public schools and choice schools are not fair. Traditional public schools, for example, enroll a higher proportion of students with special-education needs than do charter schools that, although required to accept all students, are effectively absolved of their obligation to accept special-education students if they lack the resources to respond to special needs.

Ultimately, making school enrollment competitive, while casting parents as consumers on the competitive market in which some consumers have limited bargaining power, belies the nature of educational endeavors. Classrooms and schools should be interactive, cooperative institutions. Students are not blank slates or empty vessels to be filled up by their instructors with purchased information. Rather, learning is a collaborative endeavor, deeply affected by the back-and-forth interactions between teachers and students, as well as between students themselves. Conceptualizing parents as consumers ignores this reality while creating tensions in the system as teachers and administrators are asked to “compete” for business. Students and parents should not passively “pay for” their *1121 educational service in the form of school enrollment; rather, they can, and should be encouraged to, impact their learning experience directly.

2. Private Responsibility for Public Education

In addition to problematically fostering competition in a context that should be collaborative, school choice also privatizes responsibility for public education. “Privatize” does not necessarily mean that school choice results in the enrollment of students at private schools, although private school enrollment is one aspect of the opt-out revolution in public education.  Rather, here, the term “privatize” means the relegation of care, concern, and investment in public education to the private sphere--to individual parents and caregivers, rather than to the public. There is not a natural line of demarcation for decisions that should not be made privately because they impact the public; rather, society has to draw those lines independently. Given, however, the interdependent nature of education, and the extent to which access to quality education has largely been shaped by the economic and racial composition of classrooms,  public education is one area in which those lines must be drawn more carefully, and with less opportunity for privatization than in other spheres of American life.

Like the expansion of the voucher program in Louisiana, lawmakers often present school-choice policies as the product of a proactive legislative response to state educational problems. When a state, however, adopts school-choice policies to address problems that are widespread and structural in nature--like social, racial, and economic isolation in school districts--the state abrogates communal responsibility for those problems. Although these additional “choices” result in perverse outcomes for marginalized parents and caregivers, having already made sufficient choices available, the state can now claim it is no longer responsible for addressing the achievement gap through school or housing integration. This phenomenon has led to the privatization of individual schooling decisions that are public in their effect.  It has also eliminated public debate of the merits and consequences of these ostensibly private decisions,  and *1122 immunized these choices from attack or characterization as illegitimate,  even as those choices marginalize some in the education system.

As responsibility shifts, so does blame. Having exercised the choices they were given, parents and caregivers of color are now made to exclusively bear a burden they cannot carry alone; individual parents, after all, cannot address structural causes of the achievement gap. When asked to give up on genuine equality in favor of the fiction of self-reliance, however, participants in the school system ultimately play into a sort of amnesia about the history of public education and the institutional structures that impede its potential. One must not forget segregation of public schools, the imperative of integration, and vulnerability of students--as manifested in food insecurity, low socioeconomic status, or inadequate healthcare--that the school system and the broader society must manage. Ignoring these realties and instead buying into school choice will only leave the vulnerable among us more vulnerable when market options and school choices fail to magically close the achievement gap, or result in more fraud and failing schools. This outcome is particularly troubling because others in society already devalue the decisions and preferences of poor and minority people.  Given that undervaluing, responsibility for failure in education can then be easily laid at the feet of those who chose. This rhetorical move is familiar in gender equality policy debates, where any number of gender disparities (e.g., the disproportionate presence of women in lower-paying jobs and the financial insecurity which acting as primary caregiver creates) is justified as the result of women's choices.  One can similarly expect choice in education policy *1123 to play the same role--once students and parents choose, policymakers can ignore the structural problems that drive the achievement gap but that cannot be traced to any single individual choice.

3. Individualism and Independence

School choice and choice rhetoric also problematically promote independence, autonomy, and individualism while overshadowing the reality of interdependence and vulnerability in education. Professor Charles Lawrence has written eloquently about the difficulty of discussing schooling decisions with others who also have school-age children:

When I speak of the loneliness of parenting I do not mean only that we are too often driving alone as we chauffeur children to soccer games and piano lessons. I am most concerned with the solitariness of our decisionmaking about how we raise our children . . . . [W]hen we decide where they will go to school and ponder how that school should look and feel, we are too often alone. We may consult a friend or colleague, the Internet, . . . . [b]ut these are consultations in which we ask for information to place on our private list of pros and cons. We rarely speak to other parents about what we want for our children and what they need, about our values and how we can best convey those values to our children. We rarely ask for or offer help in this solitary task because there is an unwritten sign that says “private.”

The common understanding is that these decisions are private, even though the effects of the decisions are far-reaching and public in consequence. The composition of individuals in the classrooms highly influences academic success of schools, and for students from disadvantaged backgrounds, in particular, the socioeconomic status of one's peers exerts a significant influence on academic performance.  A three-year study of 20,000 students, for example, found that “for a large number of adolescents, *1124 peers--not parents--[were] the chief determinants of” investment in school and commitment to education.

Class and school composition also impact a school's accessible resources, thus further affirming the importance of thinking about education collectively when making school assignments. Despite debates regarding the value of additional resources,  various studies have confirmed that money is useful “in producing higher student test scores when it [is used to attract] teachers with strong literacy skills, reduce[] class size[,] . . . retain[] experienced teachers, and increase[] the number of teachers with advanced degrees.”  The composition of a school, however, will determine the access to these better human resources that will produce higher test scores. Unfortunately, districts disproportionately assign novice teachers with few credentials to majority-minority schools and poor schools. Similarly, a 2004 Department of Education report found that high schools with at least seventy-five percent low-income students employed three times as many uncertified or out-of-field teachers in English and science than schools with lower poverty rates.  Moreover, other studies have found: (1) that the higher the percentage of black students in a school, the less likely those schools are to employ teachers with master's degrees or teaching experience; (2) that districts disproportionately assign novice teachers to schools and classrooms that disproportionately serve minority students; (3) that high-poverty and high-minority schools report disproportionate levels of difficulty in filling math and science positions;  and (4) that high *1125 teacher turnover is a problem in high-poverty, majority-minority schools.  Distressingly, research suggests that problems with staffing are due not only to the more numerous career options that are available to more talented teachers, but also to the racial preferences of the teachers themselves: high teacher mobility is positively correlated with higher black or Latino student enrollment, even after controlling for salaries, class size, and school poverty.  Put simply, teachers are more likely to exit majority-minority schools.

Academic atmosphere is also highly dependent on the composition of schools and the collective decisions of parents choosing to enroll in schools. Integrated schools, for example, have a positive effect on educational outcomes, in part because integrated schools are more likely to be middle-class schools that benefit from ample resources for curricular materials, more powerful parent advocates, highly qualified teachers, and small class sizes.  Diverse classrooms thwart the tendency to rely on learned thinking routines instead of deep, complex thought.  Integrated schools also have positive psychological effects on students, resulting in higher perceptions of safety and lower perceptions of vulnerability,  all the while positively influencing attitudinal and civic outcomes in ways that are important for an increasingly diverse society. “[I]nterracial contact in desegregated schools leads to an increase in interracial sociability and friendship.”  Students who attend integrated schools report greater levels of comfort with members of racial groups other than their own;  white students attending integrated *1126 schools exhibit greater racial tolerance and less fear of their black peers;  and black and white students who graduate from desegregated school settings are more likely to attend college, work, and live in desegregated settings long-term.  Finally, integrated schools “teach children, particularly white children, to respect and protect each other's human dignity.”

This body of research illustrates that choices about school enrollment do not happen in isolation. Rather, enrollment decisions have significant effects not just for the children opting out, but also for the children left behind in the old classroom or joined in a new one. To the extent that those migrating out take with them social capital and influence, those left behind are harmed by their diminished capacity to pursue equity and reform.  If we want to take education reform seriously and commit to the potential that education reform has for social equity, we must acknowledge the interdependence among students and their families in the education system and the ways in which that interdependence leaves minority students most vulnerable to the unaddressed problems in the system.

Choice rhetoric, however, makes unimportant any acknowledgement that considerations about where our children go to school, and with whom they should go, should be both about their benefit and the benefit of others. It encourages individuals to make decisions without any regard for the vulnerabilities of others, instead of reflecting on the restraints on others' choices, on how one's choice might directly undermine others, or on how one's choice might ultimately undermine common progress.  School choice inaccurately presents school decisions as the result of individual contemplation. Despite choice rhetoric, education is a site of extreme interdependence. Public education, perhaps more than any other area of civic life, is precisely about the decisions we make as a community.

*1127 4. Brown, Pierce, and Citizenship: Liberty Before Equality

Because school choice privatizes public education reform while also promoting individualism and independence, vulnerable groups that might form coalitions to address structural problems in the education system are Balkanized, encouraged by school choice and choice rhetoric to undermine each other in an attempt to maximize individual preferences. In pursuit of maximized preferences, liberty is problematically prioritized over equality.

One might argue that choice programs advance two fundamental goals of public education--liberty and equality. The former might be said to spring from Pierce and its progeny,  while the latter emanates from the equal protection principles that Brown advances.  Pursuit of liberty through choice in the school system, however, is overvalued. Even assuming it improves academic outcomes for a small fraction of the population, that fraction enjoys the achievement at the expense of many.  Moreover, notions of superior parental knowledge about children and their care inform the purported ideal of parental liberty.  Notions of parental expertise, however, are arguable exaggerated when one considers the expertise necessary to understand the subjects and methods of preparation most likely to prepare children for a future in the new information society.

Alternately, one might argue that parental liberty interests spring from parents' personal stake in the success of their children. Even so, that interest does not necessarily trump state interests in properly educating children, as reflected by arguments against unchecked parental liberty to transfer to children the values of white supremacy, sexism, or violence.  Similarly, *1128 (although not as obvious) opting out of public school education also perpetuates hierarchy and oppression that must be considered when limits on parental liberty are deliberated.

It is true that some interpret Pierce to protect the privacy and autonomy of the family through recognition of a parental right to control a child's secular and religious upbringing.  As scholars have argued, however, requiring families to “throw in [their] lot with [their] less fortunate neighbors,” does not necessarily compromise family autonomy or intimacy. Rather, the ability to exercise choice, as less vulnerable and more privileged parents in the school system do, is actually about exercising privilege-- privilege ultimately un-divorced from “power and inequality or from the history that has created those inequities of power.”  To exercise that privilege is more about protecting an impulse to give children “the best” at the expense of others, rather than about protecting family intimacy.

In addition to being more about privilege and less about protecting family intimacy and autonomy, choice does not advance equality or dignity in education because genuine choice is neither broadly available nor does it address inequality in the school system. The latter proposition, of course, depends on how we understand equality to operate in public education. Although the language in Brown striking down segregated schools as inherently unequal draws attention to unequal academic outcomes,  a broader understanding of Brown reveals it is also about anti-subordination and inclusion in community.  If genuine equality means inclusion in the communities that public schools create, then the solution is not to maximize choice, such that those with more options can exit the school system and exclude those who are left behind, but to minimize choice and refocus *1129 efforts on building the inclusive community that public schools should represent. If our goal is equality, then choice must be minimized.

III. The End of School Choice

“[W]e must struggle together to define ourselves both as a collective and as individuals.”

Given not only the failures of school choice to improve educational opportunities, but the ways in which it masks ongoing racial subordination, school-choice plans should be eliminated or limited to the maximum extent possible. This Part begins to explore ways of minimizing school choice, before going on to counter claims that limiting school choice is paternalistic because it eliminates the choices of marginalized parents in the school system.

A. Limiting or Eliminating Exit

School choice is not the answer. Rather, the elimination of school choice through compulsory universal public education is, given the near impossibility of establishing a properly functioning market, the low likelihood that parents who opt-out are genuinely empowered to do so, and the incompatibility of school-choice values with quality public education. Prohibiting exit from the traditional public school system would reaffirm education as a core democratic function of the state, while retaining in the public school system the power and influence needed to reform public schools across the board. Eliminating choice also ensures that values like competition, absolute family privacy, independence, and individualism, which are both incompatible with public education and perpetuate racial subordination, are minimized.

Limiting school choice, a proposal suggested by scholars in the United States before,  would bring much-needed social and cultural capital back to public schools, while also creating the circumstances for successful school integration by race and class. Having eliminated explicit competition, and minimized the centrality of individual liberty in schooling decisions, parents *1130 will be better invested in improving educational experiences across the board.

Moreover, as school choice is eliminated, school-choice rhetoric and values can be reined in and replaced with rhetoric and values more aligned with the realities of public education and the ultimate goal of social justice. That rhetoric must acknowledge interdependence among students, and the particular vulnerabilities of minority students, while also responding to the tendency in American society to idealize contract and choice in ways that hide structural obstacles to equality.  Indeed, choice only serves as both a distraction from, and an amplifier of, vulnerability that must be accounted for and acknowledged in education law and public policy if equity is to be achieved. As choice rhetoric renders vulnerability invisible, genuine choice is further undermined.

For a country founded on notions of individual liberty, compulsory, universal public education is unrealistic, at least in the short-term. More realistic, although not as effective, are broadly implemented reform policies that substantially limit school choice. For example, the school districts that employ controlled-choice programs in an attempt to maximize public school integration palatably limit choice in the form of exit. Under these programs, parents can choose to express preference for public school assignments, but the state ultimately maintains power to make the assignments in ways that benefit the school system. By accommodating parental preferences, such programs keep parents, otherwise inclined to opt-out of traditional public schools, invested in the system while creating an impetus for school districts to improve the quality of schooling to respond to parental concerns.

In making the assignments, districts should naturally be sensitive to racial and economic isolation at schools, taking care to assign students in ways that do not reinforce existing race and class segregation at public schools. Two of the most recognizable race-conscious, school-choice programs were implemented in Louisville, Kentucky and Seattle, Washington. Although the Supreme Court ultimately struck down both *1131 programs due to the programs' explicit consideration of race, Justice Kennedy left open the possibility of assigning students in race-conscious ways as long as race was not an explicit consideration.  Moreover, consideration of economic status is still a constitutionally viable consideration in school assignments, although class-conscious assignments often fail to produce racial integration at public schools, or worse, aggravate public school segregation.

Other scholars have suggested managing public school lotteries so as to give priority to those parents who enter the lottery as part of a heterogeneous group of students and families.  Again, limiting choice is made palatable by providing the possibility of priority, while also forcing parents to acknowledge their dependence on each other. This mechanism enhances integration efforts at schools, while retaining in the public school system those parents and families with power and influence. Here again, Parents Involved in Community Schools presents a prohibition on the explicit consideration of race, although the consideration of residential location, economic status, and even parental education may pass muster as more race-neutral considerations that nevertheless result in racial diversity among the groupings.

*1132 Given the exodus of parents from urban school districts to the suburbs, limiting choice in some districts will do nothing but entrench existing segregation by race and class unless attempts are made to encourage housing integration. Accordingly, housing policy that integrates privileged and disadvantaged students could address the choice that residential preferences mask. For example, Montgomery County, Maryland, one of the country's most affluent counties, operates the nation's oldest inclusionary zoning program.  The zoning program “requires real estate developers to set aside a portion of the homes they build to be rented or sold at below-market prices,” thus allowing “the public housing authority . . . to purchase one-third of the inclusionary zoning homes,” which serve as federally subsidized public housing.  Children from the public housing units who attended the district's most-advantaged schools “far outperformed in math and reading those children in public housing who attended the district's least-advantaged elementary schools.”  Such a program further illustrates that classroom composition heavily influences academic performance. Rather than dismiss as irremediable the school choices that more privileged parents make through housing decisions, the program limits the ability of privileged parents to opt out of public education that might include poor, low-income, or minority students, while distributing access to quality education more broadly. Federal grant programs like Race to the Top would do well to reward states that encourage coalition-building between more and less privileged groups, as well as state programs that incentivize the return of privileged parents from the suburbs to urban districts, rather than reward states that encourage people to leave the traditional school system.

The rhetoric buttressing these types of programs must neither stigmatize dependence  nor ignore the impact of race and class on the *1133 interaction between students and the state, or among students themselves. The rhetoric of dependence and vulnerability  might be employed both to counter the individualism that choice rhetoric perpetuates, and to legitimize an understanding that the fate of minority or poor students is ultimately, and appropriately, tied to the fate of more privileged students in the education system.  This would also counteract the tendency of even the most vulnerable among us to promote the mythology of complete self-sufficiency, independence, and autonomy.

B. Beyond Paternalism

In the abstract, choice can be an integral feature of law or policy that promotes equal rights and opportunities. Accordingly, defenders of school choice may ultimately argue that limiting school choice, particularly for minority parents and caregivers unsatisfied with their local schools, is pernicious paternalism. After all, some choice is better than no choice at all. My response is threefold. First, limiting choice is not grounded in attempts to protect parents and children from their irrational choices. To the contrary, opting out, even to enroll in comparable schools that fail to improve academic outcomes, might be characterized as a rational response to the negative and racialized school experiences that families of color as well as poor and working-class families experience. And until system-wide problems in the American educational system are addressed, caregivers and families have few options other than exercising the limited “choice” they have been afforded to either take advantage of school choice or exit the public school system altogether. Accordingly, I advocate for limitations on school choice to prevent the disastrous social consequences--the abandonment of the public school system, to particularly deleterious consequence for poor and minority schoolchildren and their families--that occur as the collective result of *1134 individual, albeit rational, decisions.  I also advocate for limitations on school choice in an attempt to encourage individuals to consider their obligations to children not their own, but part of their community all the same. Although outside the scope of this Article, this thought exercise applies with equal force to school choice that extends beyond charter schools and voucher programs, including homeschooling, private school education, and even housing decisions made by the wealthy.

Second, as I have argued, students of color and their families may, indeed, be “opting out,” but those decisions do not reflect genuine choice or agency. Rather, opting out is a response of parents with no reasonable alternatives who are sensitized to the way their actions, or failures to act, will be devalued on account of their race and class. In such a context, genuine choice is not exercised at all. As such, advocating for limits on school choice for those students and their families does not really undermine their exercise of choice--which was minimal or nonexistent to begin with. Placing limitations on choice for everyone in the school system, however, may materially improve education for all when those families that used their choice and privilege to leave the system are required to return. Third, the actual impact of school choice cannot be ignored. Given the racialized realities of the current education system, choice is not ultimately used to broaden options or agency for minority parents. Rather, school choice is used to sanitize inequality in the school system; given sufficient choices, the state and its residents are exempted from addressing the sources of unequal educational opportunities for poor and minority students. States promote agency even as the subjects supposedly exercising that agency are disabled. Experience makes clear that school choice simply should not form an integral or foundational aspect of education reform policy. Rather, the focus should be on improving public schooling for all students such that all members of society can exercise genuine agency, initially facilitated by quality primary and secondary education. Ultimately, improving public education begins with preventing its abandonment.

Conclusion

The rhetorical shift in education reform--from justice, equity, and community to privacy, liberty, and independence--is a troubling one that has been driven by the dominance of school choice and choice rhetoric in education policy. Our public school system, however, is meant to educate and instill values that lead to more genuine equality and liberty long-term. Although counterintuitive, in order to successfully cultivate equality and liberty, policymakers must limit choice in public education, thus creating *1135 opportunities to dismantle the structures in the school system that perpetuate inequality. Until then, school choice in public education, particularly for the most vulnerable among us, will only reflect decisions made in response to continued racial and economic subordination. And, ultimately, what choice is that?



Associate Professor of Law, University of Miami School of Law.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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