Chapter 3: How Legislation And Litigation Shape School Choice

Since its appearance on the educational landscape, school choice has engendered considerable controversy. Those controversies are captured in two forms of “law”—legislation and litigation. Legislation at all governmental levels codifies the results of political struggles around school choice and defines the actual choices available to parents. Numerous forms of school choice have been created through this political process, including magnet schools, interdistrict choice, intradistrict choice, charter schools, home schooling, voucher and tuition tax credit programs. These choice programs vary with respect to the children eligible to participate, the universe of schools from which a parent may choose, and the funding that may support the choice. Likewise, litigation has been brought to determine whether those legislative enactments are consistent with constitutional provisions and other existing laws. When courts have determined that school choice exceeds legal boundaries, programs have been struck down. Legislation and litigation, therefore, have shaped school choice in direct and significant ways. This chapter examines the relationships between various forms of school choice and the legal authority that both binds and bounds them.¹ As the discussion will show, both the creations of and legal challenges to school choice can be traced to a tension between the legal principle that parents should be able to direct the upbringing of their children and the legal principle of parens patriae (the government is the ultimate guardian), which forms the foundation for compulsory education in the United States.