The new parental rights challenge to school control: Has the Supreme Court mandated school...

A revolution in the traditional mechanisms of school governance and control is occurring in the United States, a revolution that is expected to be energized by the decision of the United States Supreme Court in Zelman v. Simmons-Harris,1 permitting voucher programs to include sectarian schools. What

may not be expected is the effect of an earlier Supreme Court decision, the case of Troxel v. Granville.2 Although Troxel directly addresses issues involving a parent's right to control visitation rights of her children's grandparents, seven justices in Zelman provided renewed vigor to the substantive due process rights of parents to control the upbringing of their children,3 a concept with potentially explosive ramifications for the current battles surrounding educational policy and parental rights. With the convergence of Troxel, the increasingly pervasive federal and state emphases upon standards, assessment, and the rating and reporting of individual school performance, and the removal by the Supreme Court of the constitutional barrier to the use of publicly funded vouchers at religious schools, the Court has opened a door that may permit parents to escape poorly performing and "failing" public schools.

I. INTRODUCTION

Thirty years ago a bright-line distinction existed between the two dominant instrumentalities of school control: public schools and private schools. Although state compulsory education laws required student attendance in school for a fixed number of years, parents could satisfy the compulsory attendance requirement by sending their children either to public or private schools.4 For the public schools, which enrolled approximately 90% of the students,5 the government, predominantly the local school district through its board of education, was responsible for policymaking and administration. Virtually all of the remaining ten percent of the students were enrolled in private schools, which were controlled predominantly by sectarian bodies and not-for-profit corporations.6 The private schools were, and continue to be, subject to varying degrees of oversight by the states.7 Home schooling then accounted for a minuscule number of students.8

As with banking, telecommunications, and electric power,9 however, the entire school world has changed within the last three decades. The wall of separation between public and private schooling, given constitutional stature by the Pierce decision, has faded, as aptly described in a related context, into "a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."10 A continuum of public schools-ranging from the traditional district-attendance schools, to magnet schools," to charter schools,12 to privately managed charter schools-is emerging. Now, private schools, too, are becoming part of the continuum, ranging from the traditional models, supported primarily by non-public funding, to private schools populated to a great extent by former public school students and supported substantially by publicly funded vouchers.13 The latter schools, in funding and student population, closely mimic the public schools, and they share many characteristics with the privately managed charter schools. Private schools continue to be subject to varying degrees of regulation by the states, but their regulation is becoming more intensive in some states.14 In addition, at the far end of the continuum, a rapidly increasing number of students are being educated outside of any formal school structure through home schooling,15 which is also subject to greatly varying degrees of regulation and supervision by the states.16 The resurgence of cursorily regulated home schooling marks an ironic partial reversion to the pre-compulsory education era.17

This article will examine one aspect of the potential political and legal consequences of these changes upon parental rights in relation to the public schools. Moreover, the Troxel decision may provide parents with the opportunity to challenge long-accepted practices of public school districts and states that require students to attend poorly performing schools and that place limits upon home schooling. The Supreme Court's renewed emphasis upon parental rights to control the upbringing of their children suggests that parents can dispute the assignment of their children to individual schools, particularly if the state itself, as a consequence of standards-based reforms, classifies some of these schools as poorly performing or "failing" schools. As more of the states move toward grading individual schools,18 parents will increasingly wonder why their children should be compelled to attend schools the state itself has labeled poorly performing or "failing," and no doubt will press for better options for their children.

Changes often produce unintended consequences. The consequences here could undermine longstanding principles and practices of public educators. Whether these changes will lead to improvement in student academic performance is an open question.

Public schools, particularly the weaker schools, will face additional, related, and daunting challenges. The system of public school finance, for example, already the subject of criticism and legal challenges in many states, could be thrown into chaos as charter schools and vouchers siphon funds in a potentially arbitrary fashion from public school districts, with the greatest impact likely to be upon the most troubled urban schools.19 The consequent unplanned fragmentation of student assignment and funding within districts will make it even more difficult to resolve the school finance battles in a number of states.20

Part II of the article will assess the changing framework of educational governance in the United States. It will examine the rapidly spreading charter school and voucher program initiatives, including their workings, justifications, and policy and constitutional issues, including those addressed in Zelman. Part III will consider the potential impact of Troxel upon parental rights to control the education of their children in the light of the new initiatives, education continuum, and the standards-based reforms considered in Part II. Part IV will offer concluding thoughts.

II. THE CHANGING FRAMEWORK OF EDUCATIONAL GOVERNANCE

In 1997, the then Chancellor of the New York City school system, Rudy Crew, declared: "We don't have a lot of time which is why I feel this incredible urgency. I think we have 10 years, tops, to turn the system around before the public gets fed up and begins to replace it with something else."21 The public school establishment nevertheless continues to demonstrate a remarkable ability to sidetrack systemic changes. Some of the reasons that urban school systems in particular deflect significant change are explained in a penetrating analysis by an astute scholar.22 Examples abound, and Dr. Crew himself was a casualty of one such attempt to introduce change into some of the New York City school system's worst performing schools.23 Nevertheless, the increasing intensity, velocity, and scope of the debate over public education and the Supreme Court's recent decision in Zelman,24 as well as the enacted and proposed reforms during the several years since Dr. Crew's statement, demonstrate that ten years may well be an overestimate.25

Public education is a profound and complex government enterprise with a variety of sometimes conflicting political, social, and economic objectives. Justice William Brennan captured its significance in 1982 in one of the Supreme Court's most significant public education decisions:

"In sum, education has a fundamental role in maintaining the fabric of our society."26 But the fabric of our society also determines what we ask of our system of public education. Professor Ronald Manzer observed:

In any political community the collective philosophy of education and theory of learning must be vital subjects of public deliberation and argument that are grounded in the fundamental beliefs and commitments of a broader public philosophy and hence can provide warrants for collective judgments about the effectiveness, efficiency, legitimacy, and justice of educational policies.27

Relatively few, however, have attempted to ground the hard educational policy decisions within a broader public philosophy.28 In the United States the current public education debate is somewhat different, involving a broader debate about the role of the government and the increasing role of the market economy in our society.29 In this context, the legitimacy of the "public school monopoly" is viewed by many as akin to the potentially dominant power of the Federal Government and consequently as a threat to be resisted mightily.30 In regard to efficiency and effectiveness," the public schools increasingly are subject to the pressures of assessment and competition, including standardized tests measuring student performance, the market economy through school choice iniatives,32 and the privatization movement.33 Justice, of course, is an abstruse and difficult question, and in the United States it is often measured by constitutional considerations.34 The consequences of the Troxel and Zelman decisions, therefore, will likely intensify the debate about justice and our educational system.

Since the publication of A Nation At Risk: The Imperative for Educational Reform in 1983,35 the need for radical reform of public education in the United States has been accepted and advocated by most political and educational leaders.36 As already noted, the reform movement is leading to the spread of standards-based reforms throughout the nation.37 In addition, the two other paradigm reforms of the moment-charter schools and vouchers are based upon the concept of choice. Observers have noted that "[w]ith the increasing demand for better schools, states and communities are providing more options to families . . . . The most important options are full school choice programs, charter schools and private scholarships."38

In 1859, John Stuart Mill succinctly and presciently articulated that the notion of choice in education has a foundation in political theory:

Is it not almost a self-evident axiom, that the State should require and compel the education . . . of every human being who is born its citizen? . . .

Were the duty of enforcing universal education once admitted, there would be an end to the difficulties about what the State should teach, and how it should teach, which now convert the subject into a mere battlefield for sects and parties, causing the time and labor which should have been spent in educating, to be wasted in quarrelling about education . . . . It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer classes of children and defraying the entire school expenses of those who have no one else to pay them.39

Mill's libertarian concept was first combined with that of the market economy by University of Chicago economist Milton Friedman, later and more elaborately by John E. Coons and Stephen Sugarman, and ultimately by John Chubb and Terry Moe in their seminal work, Politics, Markets, and America's Schools.w Professor Friedman put forth his proposal as follows:

Governments.. . could finance [education] by giving parents vouchers redeemable for a specified maximum sum per child per year if spent on "approved" educational services. Parents would then be free to spend this sum and any additional sum on purchasing educational services from an "approved" institution of their own choice. The educational services could then be rendered by private enterprises operated for profit, or by non-profit institutions of various kinds.41

In the 1970s, after languishing for two decades, the concept was advanced by Professors Coons and Sugarman. Their theme, however, somewhat echoed John Stuart Mill, and was told from the point of view of poor children and their families:

On the grounds of simple fairness children should be guaranteed reasonable access to education whatever their parents views . . . . The humane response is that the right to education should not be limited by parental resources; parental duty [regarding education] means nothing to the child if the family cannot afford to educate him. Therefore, additional collective action is necessary, and unless the child is to be taken from his parents, this requires a subsidy of the parents by the state. Only in that way can the child's hope for education be delivered from the economic limitations of his family.42

After another decade and with perhaps the greatest impact, Chubb and Moe completed the tapestry of school choice by weaving together the arguments that political pressures undermine public schools and that market forces strengthen private schools:

Schools, we believe, are products of their institutional settings. America's public schools are governed by institutions of direct democratic control, and their organizations should be expected to bear the indelible stamp of those institutions. They should tend to be highly bureaucratic and systematically lacking in the requisites of effective performance. Private schools, on the other hand, operate in a very different institutional setting distinguished by the basic features of markets-decentralization, competition, and choice-and their organizations should be expected to bear a very different stamp as a result. They should tend to possess the autonomy, clarity of mission, strong leadership, teaching professionalism, and team cooperation that public schools want but . . . are unlikely to have.43

According to Chubb and Moe, therefore, choice is the school reform that addresses public school weaknesses:

[W]e think reformers would do well to entertain the notion that choice is a panacea . . . . Choice is a self-contained reform with its own rationale and justification. It has the capacity all by itself to bring about the kind of transformation that, for years, reformers have been seeking to engineer in myriad other ways. Indeed, if choice is to work to greatest advantage, it must be adopted without these other reforms, since the latter are predicated on democratic control and implemented by bureaucratic means. The whole point of a thoroughgoing system of choice is to free the schools from these disabling constraints by sweeping away the old institutions and replacing them with new ones. Taken seriously, choice is . . . a revolutionary reform that introduces a new system of public education.44

Although Chubb and Moe reject top-down reforms,45 top-down reforms will spur the demand for choice by highlighting public school failures through means such as standardized tests and school report cards. This is already the case in several states including Florida and New York.46

A. Charter Schools

Charter schools are now the most widespread choice reform.47 In a manner similar to that of term limits, the phenomenon of charter schools began sweeping the country early in the 1990s.48 The first charter school law was enacted by Minnesota in 1991,49 and the first charter school opened there in 1992.50 Eleven years later, by late 2002, 39 states, the District of Columbia, and Puerto Rico had enacted charter laws.51 At the beginning of the 2002-2003 school year, a total of 2700 charter schools were operating in 36 states and the District of Columbia, serving approximately 575,000 students.52 Most of the operating charter schools, however, were only a few years old53 and approximately 50% of the operating charter schools were located in only four states-Arizona, California, Florida, and Texas.54

Charter schools are independent public schools, initiated and operated by entities and groups such as teachers, parents, community organizations, colleges, universities, and educational entrepreneurs. They are based upon a written document-a charter-granted by a chartering authority as authorized by the law of the state. Although they vary considerably from state to state, charter schools include all, most, or some of the following characteristics. Charter schools: 1) operate based upon a detailed written agreement-the charter-for a specified period; 2) exist as public legal entities, separate in some way from the local school district in which they are located; 3) operate free from many state and local regulations applicable to public schools; 4) receive operational funding from public funds, and make budget decisions at the school level; 5) are relatively free to adopt instructional and curriculum protocols; 6) are free to manage decisions, including hiring and budgeting, at the school level; and 7) give sponsors, including in many cases teachers and parents, the opportunity to participate in the design of schools.55 As public institutions, charter schools are open to any student (in their catchment area) who applies.56 Unlike private schools participating in a voucher system, an oversubscribed charter school must admit students by lottery.57 And, unlike private schools, ability to pay is not a criterion for attendance.58

Charter school advocates extol the influence of market forces upon the success of charter schools:

Charter schools are not just freer to be responsive and work hard, however. They also have incentives to do so. One incentive comes from the fact that charter schools are "schools of choice." No student is compelled to attend a charter school; parents may withdraw their children from charter schools at any time. Charter schools cannot take their "customers" for granted. Their very survival depends upon the degree to which families believe the schools are responding to family preferences and working hard to provide the education they demand.59

Two of the more controversial aspects of the charter school phenomenon, however, are that in ten states, for-profit organizations can legally manage and operate charter school and in some states, church-related organizations are eligible to sponsor charter schools.60 Given the difficulties of starting a charter school,61 which Hassel describes in gruesome detail,62 it is hardly surprising, although unanticipated by most charter advocates, that large enterprises, with considerable resources, are playing an increasing role as charter school sponsors. As the reported examples illustrate, funding adequate facilities is one of the major implementation problems for charter schools; the problem is exacerbated because charter schools usually pay for facilities out of operating funds or private contributions, rather than the dedicated funding sources for capital expenditures usually available to public schools.63 Many states leave only the charter school corporation or board responsible for a charter school's debt,64 making borrowing more difficult. Funding for start-up costs-textbooks, equipment, and computers-presents another challenge for charter school sponsors in many states.65 Consequently, describing the role of for-profit entities in charter schools, Hassel states:

"More plausible is the scenario under which a handful of large organizations" whether for-profit outfits like the Edison Project or non-profit efforts like New American Schools-each sponsors a large number of charter schools nationwide."66

These predictions were borne out in New York State. The New York Charter School Law was enacted in December of 1998.67 Four of the first eight proposals for charter schools approved in New York State were to be operated by for-profit companies. (Two other schools opened in 1999 were established New York City public schools converted to charter status.)68 Local parent-teacher groups, with limited resources, would find it exceedingly difficult to find, alter, and finance a suitable building within nine months, particularly in high-cost areas of the state such as New York City.

B. School Choice and Vouchers

The education continuum becomes hazier as one moves along to choice programs built upon vouchers. In 1925, the Supreme Court decision in Pierce69 gave parents the right to send their children to a private rather than a public school to satisfy compulsory education laws. During the 1990s, approximately ten percent of school-age children attended private schools,70 but parents have had to pay tuition costs.

Now, private school choice through the initiation of voucher programs is gaining momentum. In the United States, the concept of choice is a cardinal canon of both our market economy and democratic society. The perceived failure of some traditional public schools,71 particularly many in urban school districts,72 is propelling the demand for a mechanism that would give poor, urban, parents "trapped" in a dysfunctional public school system a choice73-hence voucher programs. The Reverend Floyd Flake, for example, a well-known Black minister in Queens, New York City, and a former U.S. Congressman, is a strong advocate of vouchers:

I would argue that if we are not doing what we are mandated to do, then we have a responsibility to demand that our resources be spent in ways that guarantee that every child in America has an equal opportunity to compete . . . . Are vouchers the total answer? Absolutely not. America will always need a public education system . . . . If the system does not reform fast enough to create alternatives, it cannot continue to be the monolith that makes promises that it does not deliver.74

Choice can also be provided through the tax system. In 1997, for example, Minnesota amended its existing program to provide a tax deduction to middle-income taxpayers and a tax credit of up to $1,000 a year to low-income families, which may be used for educational expenses at either public or private schools.75 Such programs are of limited value to very low-income parents, however, because their state tax payments may not even approach $1,000, an amount which, in any event, would not cover private school tuition.76 The earlier Minnesota program was found to be constitutional by the U.S. Supreme Court.77

Privately supported school scholarships (in effect privately funded voucher programs) are also mushrooming. Some, as in Arizona, receive state support through tax expenditures. The Arizona statute permits a state tax credit of up to $500 for individuals who donate to "school tuition organizations," charitable organizations that fund educational scholarships or tuition grants to children to allow them to attend any qualified school, including a sectarian school, chosen by their parents.78 The constitutionality of the statute was upheld by a three-to-two decision of the Arizona Supreme Court.79 Not surprisingly, the Arizona program has been both praised and condemned.80 Other school scholarship programs are privately financed,81 and it is estimated that 60,000 students received privately financed, voucher-style scholarships to attend private schools during the 2001-02 school year.82

As with charter school laws, there are different types of publicly supported voucher programs; the programs benefitted an estimated 17,500 students during the 2001-02 school year.83 The underlying similarity of voucher programs, however, is that the state provides eligible parents with a voucher, which can then be used to educate their children in a participating school of their choice. The state then reimburses either the school of choice or the parent for the value of the voucher. On the other hand, crucial differences in programs include the amount of the voucher, whether sectarian schools are eligible to participate in the program,84 whether participating schools can charge tuition greater than the voucher, which parents are eligible to participate in the program, whether provisions are made for student transportation, and the degree to which participating private schools are regulated by the state (if at all). The different programs, of course, produce different consequences for parents and for the various public school systems.85 The key question is whether vouchers improve student academic performance. At present, the answer is unclear.86

The states of Maine and Vermont and the cities of Cleveland and Milwaukee offer publicly funded "full choice" programs, giving parents the opportunity to send their children to the public or private school of their choice.87 The Maine and Vermont programs are longstanding.

The program in Maine, established in 1873, is designed to provide primary and secondary education. About one half of the school districts in Maine do not have their own secondary schools and therefore have voucher or "tuitioning" programs.88 The program pays tuition for approximately 5600 children to attend only public or non-sectarian private schools.89

Lawsuits by parents seeking to force Maine to fund tuition for children attending sectarian schools have thus far been unsuccessful. Both the First Circuit90 and the supreme judicial court of Maine91 have held that the exclusion of sectarian schools from Maine's program did not violate either the U.S. or Maine constitutions.

In the case of Vermont, the program, established in 1869, funds high school educations for 6500 students in districts which do not have their own public schools. By local option, the Vermont program includes sectarian schools.92 The supreme court of Vermont, addressing an issue arguably distinct from that presented in the Maine cases, held that reimbursement of a parent for tuition expenses incurred educating his son at a sectarian high school did not violate the Establishment Clause of the U.S. Constitution.93 A case presenting the same factual issues, however, was again decided by the Vermont Supreme Court in 1999.94 The Chittenden School Board included religious schools among the approved voucher schools in 1995. One independent sectarian secondary school, a Catholic school, operated in the school district's county. When the Chittenden School District voted to allow reimbursement to the Catholic school, the Vermont Commissioner of Education terminated state aid to education in the school district. The District then sued the Commissioner and the Vermont Education Department claiming that tuition reimbursement was constitutional. The Vermont Supreme Court distinguished Campbell by noting that the issues involving the Vermont Constitution had been explicitly reserved in Campbell.95 It held that Chittenden School District violated the Compelled Support Clause of the Vermont Constitution by reimbursing tuition for a sectarian school in the absence of adequate safeguards against the use of public funds for religious education.96 Following the U.S. Supreme Court decision in Zelman, the Institute for Justice announced that it will challenge the provision of the Vermont Constitution, arguing that "state constitutions may not discriminate against religious options."97

The Milwaukee voucher program, established in 1990,98 issued vouchers worth up to $5,553 to 10,739 students in grades K-12 attending private schools during the 2001-02 school year.99 The Cleveland program, established in 1995, issued vouchers worth up to $2,250, to 4,195 students in grades K-8 attending private schools during the 2001-02 school year.100 Both programs permit attendance at sectarian schools, with both surviving constitutional challenges in their state supreme courts on this issue.101 The Cleveland program, however, was also challenged in the federal courts, leading to a landmark U.S. Supreme Court decision.

Following the reauthorization of the Cleveland program, the National Education Association, the American Federation of Teachers, People for the American Way, and other anti-voucher groups filed suit in Federal District Court, leading to the issuance of an injunction by U.S. District Judge Solomon Oliver, Jr., precluding 587 new voucher students from receiving vouchers pending further proceedings. The vast majority of the 56 private schools in the Cleveland program are religious schools. Judge Oliver found, in his preliminary injunction ruling, that the program "has the primary effect of advancing religion."102 The preliminary injunction was stayed "pending final disposition of the appeal by the United States Court of Appeals for the Sixth Circuit" by a 5-4 vote of the U.S. Supreme Court on November 5, 1999.103

On December 20, 1999, Judge Oliver issued a decision finding that taxpayer-financed vouchers used by children to attend parochial schools violate the Establishment Clause of the First Amendment.104 The decision was appealed to the Sixth Circuit Court of Appeals, and the parties agreed to permit children to continue to attend parochial schools under the program until a decision by the Sixth Circuit.105 Almost one year later, on December 11, 2000, a divided three-judge panel of the Sixth Circuit ruled that the Cleveland voucher program violated the Establishment Clause of the First Amendment.106 The two-judge majority relied heavily upon the U.S. Supreme Court's decision in Committee for Public Education v. Nyquist107 in reaching its conclusion that the Ohio Scholarship program is designed to attract religious institutions.108 Voucher supporters vowed to continue the legal battle,109 and on September 25, 2001, the U.S. Supreme Court granted cert.110 The case was argued before the Court on February 20, 2001.111

On June 27, 2002, the Supreme Court issued its long-awaited decision. Chief Justice Rehnquist delivered the opinion of the court on behalf of a five-justice majority. Relying primarily upon three recent Establishment Clause precedents, Mueller v. Allen,112 Witters v. Washington Department of Services for Blind,113 and Zobrest v. Catalina Foothills School District,114 the majority opined as follows:

[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission . . . is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.115

In order to find the Cleveland program neutral toward religion and parry the argument of the dissenters that over 96% of all voucher recipients go to religious schools,116 the majority relied upon the continuum of educational choices available to the parents of the children attending the troubled Cleveland public schools:

Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community [charter] school, or enroll in a magnet school.117

In 1999, Florida enacted the first state-wide, publicly funded school voucher program in the United States.118 (Puerto Rico had adopted a Commonwealth-wide voucher program earlier, and California had attempted to do so.119) Under the law, each Florida public school is assigned a letter grade (A-F) every year, based upon test scores, attendance, and graduation rates.120 Students in schools receiving failing grades for two of every four years will be able to use state opportunity scholarships (vouchers) of approximately $4,000 to attend a different, qualified public school (graded "C" or better) or to pay for tuition at a private school, including a sectarian school.121 In 1999, the Florida Department of Education estimated that approximately 156,000 students at up to 169 public schools could qualify for vouchers at the beginning of the 2000-01 school year.122 Two schools were affected during the 1999-2000 school year, with about 58 students receiving vouchers worth a maximum of $3400 (excluding special needs students).123 Remarkably, however, the Florida Commissioner of Education announced early in the summer of 2000 that the Florida accountability program had been so successful in raising test scores that vouchers would not be offered to any new students for the fall 2000 school term.124 The program's success, however, did not continue unabated. In June of 2002, the Florida Commissioner announced that ten schools had received a second "F" during the 2001-02 school year, making approximately 8900 students eligible for vouchers.125

There is, of course, a powerful anti-private-school choice movement.126 With relatively few requirements placed upon private schools accepting vouchers, there is also concern on the part of some about a potential proliferation of private schools set up for the sole purpose of receiving voucher students:

In Cleveland, "fly-by-night private schools opened up just to take the voucher students," said Sandra Feldman, the president of the American Federation of Teachers and a forceful opponent of voucher programs. "What are they thinking? They're washing their hands of the majority of children by not putting money into what works."127

The Florida program, on the other hand, is politically very attractive because it provides a publicly funded exit for children from public schools that are acknowledged by the state to be failing to educate their children. The program served as a model for President George W. Bush's initial education legislation presented to Congress in January of 2001(128) and subsequently enacted as the No Child Left Behind Act.129 It is also serving as a model for other states.130 Attacking it may come with a political price, as one of its sponsors, Florida Republican House Representative Alex Diaz de la Portilla, noted: "People bringing legal challenges need to be careful because we're dealing with children and their futures . . . . It would be irresponsible of them to keep children from learning how to read and write because of their own special interests."131

Nevertheless, a coalition of teacher organizations and advocacy groups soon filed a lawsuit in Florida state court. The lawsuit led to a March 14, 2000, decision by a Florida circuit court judge that Article IX, section 1 of the Florida Constitution prohibited the use of taxpayer funds for private school tuition.132 In a potentially significant decision, however, a Florida District Court of Appeal reversed the circuit court, ruling that the Florida Constitution "does not unalterably hitch the requirement to make adequate provision for education to a single, specified engine, that being the public school system."133 The Florida litigation was expected to recommence following the U.S. Supreme Court decision in Zelman.134 In the meantime, the Florida program provides considerable leverage to parents seeking to use the Troxel decision to move their children to "better" public schools or to private schools accepting vouchers.135

The increasing murkiness of the distinctions within the school control continuum was demonstrated by a development in Cleveland. The Hope Academies, two private schools with more than 400 students established in 1996 to serve students in Cleveland's voucher program, closed in June of 1999. A few months later, in September, two charter schools were to open on the same sites, sponsored by new non-profit organizations. The non-profit entities, however, were contracting with the former private school owner's for-profit education management firm to manage the schools, and it was anticipated that personnel from the defunct voucher schools would then work in the new charter schools.136 "Some school choice experts say changes between voucher and charter status are inevitable as long as those different types of schools receive different levels of public funding."137 The Cleveland conversions, likely the result of the higher level of funding provided to charter schools in Ohio,138 presage potential difficulties in differentiating charter and voucher schools, and raise the question as to whether some voucher schools should be considered state actors.139

C. Home Schooling

The other endpoint of the education continuum-home schooling-may also be affected by the Troxel decision and by public-private voucher programs. It is estimated that home schooling may now represent up to 20% of privately schooled children.140 All states permit home schooling, with great variance in the degree of regulation.141 In some states the extent of regulation does not differ markedly from the regulation of certain private schools. In California, for example, some parents in their filings with the state are reporting their home schooling as private schools with fewer than five children.142

The potential interconnections are further demonstrated by some California charter schools, which have been enrolling home-schooled students through programs of distance learning, with their sponsoring districts perhaps benefitting financially from the home-school-oriented charter schools. A law, which took effect in January, 2002, is affecting a number of California's charter schools, as well as angering home schooling parents, by tightening regulations regarding distance-learning students.143

In a jurisdiction with a voucher program including private and sectarian schools, parents who withdraw their children from public schools and opt to home-school their children and who meet the eligibility criteria for vouchers may seek to claim voucher funds. These parents could assert an entitlement to vouchers if a state which is providing vouchers for non-public education denies the voucher to parents who opt to home school their children, relying, in part, upon the Troxel decision.144

D. New Directions?

The impact of current charter school and voucher choice programs remains fairly limited. Cumulatively, they educate a little over one percent of the public school population,145 with home schooling accounting for approximately two percent additional.146 The reasons for the limited scope of charter school and voucher programs are largely political, related in significant part to the dominance of suburban representatives in the state legislatures.147 Suburban parents strongly support their public school systems, and they resist and oppose programs that would intrude upon the autonomy of their local school districts.148 That viewpoint is expressed by their representatives in the state legislatures.149 It may be necessary to turn to the judiciary to force change,150 and the U.S. Supreme Court may have opened the door, even before its decision in Zeiman.

III. THE IMPACT OF TROXEL UPON THE RELATIONSHIP BETWEEN PARENTS AND PUBLIC EDUCATION

The Troxel151 decision may upset the existing balance of power between the state and parents in regard to state compulsory education policies by strengthening the constitutionally based authority of parents to resist some state and school district mandates. In particular, by breathing new life into Pierce,152 Troxel offers constitutional support to parents challenging the state's authority to assign students to poorly performing schools within the public education system and perhaps to parents claiming government support for home schooling and private school attendance.

Pierce set forth the constitutional principles under which the states compel school attendance and regulate public and private schools. Compulsory education laws, the first of which was adopted by Massachusetts in 1852,153 shifted much control over a child's education from the presumably incompetent parents to the local school district acting under state authority.

Over the long perspective of the last century and a half, both phases of compulsory school attendance may be seen as part of significant shifts in the functions of families and the status of children and youth . . . . Advocates of compulsory schooling often argued that families-or at least families, like those of the poor and foreign-born-were failing to carry out their traditional functions of moral and vocational training. Immigrant children in crowded cities, reformers complained, were leading disorderly lives, schooled by the streets and their peers more than by Christian nurture in the home. Much of the drive for compulsory schooling reflected animus against parents considered incompetent to train their children. Often combining fears of social unrest with humanitarian zeal, reformers used the powers of the state to intervene in families and to create alternative institutions of socialization.154

Shortly after the first world war, Oregon was the first state to seek to require, by referendum, that all children attend public schools.155 The challenge to the referendum,156 passed by the voters of Oregon on November 7, 1922, led to the Supreme Court's decision in Pierce. In its opinion, the Court ruled that the Oregon law was an unconstitutional violation of the substantive due process rights of the parents:

[W]e think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control . . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.157

The Court did, however, preserve the authority of the state to mandate compulsory education and to regulate the private schools, to which parents now had constitutional blessing to send their children:

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise, and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers be of good moral character and patriotic disposition, that certain certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.158

Pierce lay virtually dormant for many decades, however, with the shift toward reliance upon the First Amendment Free Exercise Clause as a limitation upon state mandates curtailing parental rights regarding the education of their children.159 Pierce's impact upon education battles was seen as limited. One commentator during this period described Pierce as follows:

Pierce is problematic if approached entirely in terms of individual entitlements . . . . Compulsory attendance laws interfere more significantly with parental autonomy than the law in Pierce, the decision that children must attend some school for eight or more years of their lives appears more consequential than the secondary decision that they must attend public school . . . . Thus Pierce becomes intelligible only against the background of a structure limiting the power of government to indoctrinate the young. Although the Justices probably did not intend this construction, Pierce may be understood as telling governments that they are free to establish public schools and to make education compulsory for certain age groups, but they are not free to eliminate competing private sector institutions that promote heterogeneity in education.160

Yet the six prevailing justices in Troxel, as well as at least one of the dissenting justices, rely heavily upon Pierce to underscore parents rights to control the education of their children. They do this by analyzing Pierce as creating an individual entitlement for parents to direct their children's education. They appear to emphasize a point unnecessary to the resolution of the child-visitation dispute before the Court. For example, Justice O'Connor's plurality opinion, joined in by the Chief Justice and justices Ginsburg and Breyer, reads in part as follows:

The Fourteenth Amendment . . . includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests . . . . The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago . . . we held that the "liberty" protected by the Due Process Clause includes the right of parents to establish a home and bring up their children and to control the education of their children. Two years later, in Pierce v. Society of Sisters, we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. We explained in Pierce that the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.161

The opinion later speaks of "a presumption that fit parents act in the best interests of their children."162 It goes on to state: "The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child."163

Justice Souter in his concurring opinion notes: "[T]he right of parents 'to bring up children' and to 'control the education of their own' is protected by the Constitution."164 Later in his opinion, speaking of parental rights to control a child's associates,165 he writes:

The strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associations on the development of the child's social and moral character. Whether for good or ill, adults not only influence but may indoctrinate children, and a choice about a child's social companions is not essentially different from the designation of the adults who will influence the child in school.166

Justice Thomas takes the most far-reaching position-that strict scrutiny, the most stringent level of review, should be applied:

Our decision in Pierce v. Society of Sisters holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights.167

In his dissenting opinion, Justice Kennedy also endorses the concept of parental rights:

[T]here is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: . . . the custodial parent has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. Pierce and Meyer,168 had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion. Their formulation and subsequent interpretation have been quite different, of course; and they have long been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the custody, care and nurture of the child, free from state intervention.169

At least seven justices thus appear to have given new life to the Pierce concept of substantive due process creating a fundamental liberty interest of parents to control the education of their children. The standard of review of state action impairing this parental interest may range from the plurality opinion's presumption in favor of a parental decision, to Justice Thomas's desire to apply strict scrutiny to any governmental infringement of the fundamental rights of the parents to decide who shall educate their children. Significantly, unlike Yoder, the Troxel right does not rest upon the presence of a religious element in the parental decision making.170

Within the public schools, the accommodations between governmental mandates and parental autonomy and authority in matters of educational decisions, until now, have been left primarily to the states to resolve through state legislative action, state coordinating bodies, and local boards of education. In today's world, acknowledging an individual entitlement-a constitutional right of parental control as a fundamental liberty interest-could shift much decision making from the educational establishment to the parents and, concomitantly, to the Federal courts, leaving public educational agencies with less discretion to implement educational policy.

The question then arises as to how this new fundamental liberty interest can be invoked in practice. More than three decades ago, in Stanley v. Illinois,171 the Supreme Court held that parental custodial rights are entitled to procedural due process protection as a liberty interest protected by the Fourteenth Amendment. As the Court stated: "[T]he interest of a parent in the companionship, care, custody, and management of his or her children 'comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.'"172 Likewise, as this article posits, Troxel suggests a parallel substantive due process liberty interest in directing a child's education. Consequently, parents whose children-against the parents' wishes-are assigned to poorly performing or "failing" public schools for the convenience of the local school district should be entitled to challenge the school district's decision in a due process hearing.173 Similarly, the Court in Stanley stated:

Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials, no less, and perhaps more, than mediocre ones . . . . But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.174

Prior to Troxel, at least one commentator suggested that "[i]nvoluntary placement of students by the state in a program not designed to provide the skills that the state has articulated as the purpose of compulsory education could be viewed as a deprivation of liberty without due process of law . . . ."175 When a local school district involuntarily places a student in a school that the state has declared is performing poorly, or, indeed, is failing, it is clearly disdainful of present realities in deference to past formalities (i.e. assumption) that all public schools provide an acceptable education.176 The parent's liberty interest in seeking to have one's children escape from such a school is persuasive.177 The applicable standard of review-ranging from the plurality's presumption in favor of the parent to the requirements of strict scrutiny urged by justice Thomas-would require the local school district to justify its action and would subject its justification to judicial review.178

The parental liberty interest is not answered satisfactorily by a state response that Pierce entitles parents to remove their children from the public schools and enroll them in a private school. In 1999, 75.9% of students in grades 1-12 attended an assigned public school, while only 14.5% attended a public school of their choice.179 The remainder attended private schools or were home schooled.180 Setting aside the economic costs entailed in private school education and the potential equal protection issues that may ensue,181 every state, by constitution, statute, or by both,182 mandates the availability of free, compulsory public elementary and secondary education for all children within its boundaries.

The current revival of parental rights is occurring in an educational era vastly different from the Pierce-era of the mid-1920's, and therefore may have very different consequences from those that resulted from Pierce-the protection of the right to satisfy compulsory education laws by attending private schools. As already described, the bright-line distinc-tion between public and private schools is evolving into a continuum of schooling ranging from the traditional public school to home schooling.183 Concomitantly, the importance of education and the scope of public and private education have grown enormously. Total elementary and secondary school enrollment at the time of Pierce was approximately one half what it is today.184 Significantly, in 1919-20, fewer than a third of the population 14-17 years of age was enrolled in high school. By 1929-30, which marked the onset of the great depression, the percentage enrolled had grown to just over one half.185 In 2000, 94.1% of the 14-17 year old population was enrolled in high school186 and 95.7% was enrolled in school.187 Furthermore, special education did not exist in the 1920s, and therefore little or no education was provided to students with serious disabilities.188 In 1920, only 16.4% of the population 25 years of age and over had completed high school, and the percentage had risen only to 19.1 by 1930. In 2000, however, 88.1% of 25-29 year olds had completed high school.189 In 1920, only 3.3% of the population 25 and over had completed four or more years of college, rising only to 3.9% by 1930.190 By 2000, however, 29.1% of 25-29 year olds had completed a bachelor's degree or higher.191 Most significantly, the ability of people to achieve successful careers 75 years ago was much less dependent upon successful completion of high school and entry into college.192 Consequently, the effects of decisions made by public educational authorities were considerably less significant for most people. Therefore, the concept of parental rights to educational control described in Pierce was largely confined to the choice between public and private schools, a choice with relatively limited impact.

Scenarios in which parents would want to assert such a constitutional right are mushrooming as state educational policies evolve. Twenty-nine states and the District of Columbia have adopted accountability plans that provide in different ways for publicly grading individual public schools or school districts, with seven additional states planning to implement ratings by the Fall of 2004.193 The No Child Left Behind Act of 2001 requires schools to meet "adequate yearly progress" targets.194 Under current policies some schools are being graded by a state as "failing."195 New York State, for example, currently classifies schools with very poor student results on standardized tests as SURR schools, "Schools Under Registration Review." The New York City School District has 58 of the 83 SURR schools under its jurisdiction, and these schools have had a substantial number of uncertified teachers.196 Yet thousands of New York students face mandatory de jure or de facto assignment to these schools.197 Parents, asserting a right to control the education of their children, could for very sound reasons refuse to allow their children to attend a poorly performing school.198 Today, the consequences of decisions by public education authorities that affect children are far more consequential, and parents are more aggressively seeking to alter or improve the educational opportunities available to their children. Mandatory assignment of a student to a poorly performing or "failing" school may well have consequences for the rest of the child's life, depriving him or her of the possibility of entry into higher education and many jobs and professions. The U.S. Department of Education reports as follows:

Persons with lower levels of educational attainment were more likely to be unemployed than those with higher levels of educational attainment. The 2000 unemployment rate for adults (25 years old and over) who had not completed high school was 6.4 percent compared with 3.5 percent for those with 4 years of high school and 1.7 percent for those with a bachelor's degree or higher.199

The importance of college is accelerating. A Business Week article reported as follows: "High school grads' median weekly earnings are 43% less than those of college grads, far worse than the 28% gap in 1979. And education is likely to become even more essential to prosperity in the future."200 If the school district sought to enforce attendance at a school declared by the state to be poorly performing or "failing," how could the district overcome even a presumption such as that applied by the plurality opinion in Troxel in favor of the parents refusal and their demand for a better alternative?201 The school district cannot respond to a due process challenge that placement in a school the state rates as poorly performing or failing overcomes the parental right and satisfies its obligations.202

Coupling the Supreme Court's decision in Stanley with the newly revived substantive right regarding parental control over their child's education, as articulated by Troxel, could provide parents with the opportunity to force changes in traditional school district assignment policies. If a substantial number of parents, whose children are assigned to state-designated, poorly performing or "failing schools" successfully challenged the assignments, the consequences could lead to the closure of inadequate schools and other salutary changes. Parental demands likely will spur the creation of more charter school and voucher options in response. As remedies, courts could order school districts to create and make available to parents school choice options analogous to the remedies used by federal courts in school desegregation cases.203 Unfortunately, forced deference to parental wishes could also weaken state education laws and practices that seek to protect children from idiosyncratic decisions by their parents.204

Furthermore, denial of the option for home schooling can seriously thwart parents' ability to control the upbringing of their children. In the context of home schooling, the Troxel liberty interest, as well as equal protection principles, could assist parents in overcoming state limitations upon home schooling, particularly in states such as California and New York with more comprehensive regulations.205 If a school district, for example, assigns a student to a school with a plethora of uncertified teachers, can it insist, consistent with equal protection principles, that the home-school instructor be a certified teacher? What if the assigned school is rated as poorly performing or failing? Even under limited rational basis review, it may be possible for the parents to argue successfully that there is no rational basis for such a restriction upon home schooling.206 Although the U.S. Supreme Court ruled that education was not a fundamental right in San Antonio Independent School District v. Rodriguez,207 one commentator has argued that "the court [sic] in . . . Rodriguez208 left open the possibility of showing that provision to some students, and denial to others, of the skills and knowledge needed for exercising other constitutional rights of citizenship, such as voting, regardless of intent, could burden fundamental rights and trigger heightened equal protection scrutiny."209 The parents could certainly argue that Plyler v. Doe,210 which, a decade after Rodriguez, embraced the importance of education, applied an intermediate standard of equal protection review in finding unconstitutional Texas' attempt to exclude or charge tuition to children of illegal immigrants seeking to attend public schools.211 If an intermediate standard of review is applied, the state would find it much more difficult to defend its policies limiting home schooling. The success of many home schooled students would support the arguments of the parents.212

IV. CONCLUSION

The Supreme Court in Zelman v. Simmons-Harris lifted the bar to state approved school voucher initiatives, but Zelman does not compel voucher programs or any other educational initiatives. Seven of the Supreme Court Justices in Troxel, however, appear to be opening the door to some mandatory action. At a time when education is seen as essential for success, and when it is no longer possible to make a facile distinction between public and private schools as charter school and voucher programs continue to balloon, parents may be able to assert their educational choices for their children. Given the importance and emphasis placed upon education today and as the linchpin for the nation's future, it is unlikely that the Supreme Court would disclaim education as a prime function of state and local government or otherwise devalue its significance. Consequently, the substantive due process liberty interests recognized in Troxel, and attendant procedural due process rights, could provide much greater leverage to parents seeking to better the education of their children. And, denial of the option for home schooling can seriously thwart parents' ability to control the upbringing of their children.

If the Troxel decision gives parents a constitutional right to challenge the decisions of state and local educational officials in matters affecting their children-beyond the right simply to choose between public and private schools to satisfy the compulsory education requirement-what does that right entail? In particular, do parents of children attending poorly performing public schools now have any constitutionally based right to choose the public schools that their children are to attend or to teach their children at home? For the reasons analyzed in Section III, a strong argument can be made to support parents who opt to home school their children. Although the Troxel liberty interest would not support a parent's choice of a particular public school, it should support a demand for assignment to a public school rated as satisfactory or for choice of one of the evolving governance options discussed in Section II-charter schools or vouchers.

AUTHOR_AFFILIATION

IRA BLOOM*

AUTHOR_AFFILIATION

*Professor of Political Science, Lehman College of The City University of New York; B.A. 1964, The City College of The City University of New York; J.D. 1967, Harvard University.