Confronting the seduction of choice: Law, education, and American pluralism

Yale Law Journal

Volumn 120, Issue 4, 2011, Pages 814-848

  Minow, Martha ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 79751501154     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (205)

1. 347 U.S. 483 (1954)
2. MARTHA MINOW, IN BROWN'S WAKE: LEGACIES OF AMERICA'S EDUCATIONAL LANDMARK 5-32+109-37 (2010);
3. infra notes 20-26 and accompanying text.
4. The Oxford English Dictionary defines "seduction" as "[t]he condition of being led astray." 2 THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 2706 (1971). Webster's defines "seduction" as "something that entices or influences by attraction or charm." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2054 (1993).
5. Talk of "choice" can obscure constraints in many contexts. Martha Minow, Choices and Constraints: For Justice Thurgood Marshall, 80 GEO. L.J. 2093 (1992). In the context of schools, the language of choice typically shifts attention from intergroup comparisons to individual freedom; it can also render less than obvious real obstacles to the exercise of choice by some and even veil a complete lack of options.
6. Ted Wragg, Don't Fall for the Rhetoric of Choice, GUARDIAN (London), Oct. 17, 2005, http://www.guardian.co.uk/education/2005/oct/17/schools.uk ("A group of children in one town were left without a school place at all. Most of the schools were foundation schools, able to turn down those they did not want. The would-be pupils left unplaced were Travellers' children. It tells its own story.");
7. Miriam David et al., Choice Within Constraints: Mothers and Schooling, 9 GENDER & EDUC. 397 (1997) (examining structural and moral constraints experienced by parents despite sources of freedom of choice for parents as consumers in the education marketplace).
8. Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968); Griffin v. Cnty. Sch. Bd., 377 U.S. 218 (1964). Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
9. Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The worries about "seduction" in the use of "school choice" frameworks are already present in popular debates.
10. KEVIN K. KUMASHIRO, THE SEDUCTION OF COMMON SENSE: HOW THE RIGHT HAS FRAMED THE DEBATE ON AMERICA'S SCHOOLS (2008). Lochner v. New York, 198 U.S. 45 (1905).
11. Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925).
12. Martha Minow, We, the Family: Constitutional Rights and American Families, 74 J. AM. HIST. 959+961-962 (1987) (discussing cases). Pierce, 268 U.S. at 535.
13. This presentation of private choice-protected to the extent that private resources allow-is well summarized in the Universal Declaration of Human Rights, drafted and ratified by the United Nations' General Assembly in 1948. Article 26 of the Declaration includes two provisions that when read together imply that even private elementary education options selected by parents must be free, imposing no financial costs to the family. First: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory." Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), at 76 (Dec. 10, 1948). Second: "Parents have a prior right to choose the kind of education that shall be given to their children." However, it is possible to conclude, consistent with practice in the United States, that governments satisfy the fundamental right to an education by providing a free public school option and ensuring that private options satisfy the compulsory schooling requirement while leaving such alternatives to private funding.
14. PAULA ABRAMS, CROSS PURPOSES: PIERCE V. SOCIETY OF SISTERS AND THE STRUGGLE OVER COMPULSORY PUBLIC EDUCATION (2009);
15. Martha Minow, Keynote, Before and After Pierce: A Colloquium on Parents, Children, Religion and Schools, 78 U. DET. MERCY L. REV. 407 (2001);
16. Minow, supra note 10.
17. Because it was not in question in the case, the ability of a state to regulate private schools and mandate curricular elements and qualifications for teachers was treated as a given: 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 shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare. 268 U.S. at 534. Several decades later, the Court permitted an exemption from compulsory schooling for high-school-aged children in Amish families. Wisconsin v. Yoder, 406 U.S. 205 (1972).
18. E.g., School Choice, CATO INST., http://www.cato.org/school-choice (last visited Oct. 11, 2010) (listing books, articles, and chapters sponsored by the Cato Institute on school choice as a policy to promote individual liberty, free markets, and peace);.
19. Press Release, Heritage Found., School-Choice Movement Continues To Grow, Report Says (Apr. 26, 2005), available at http://www.heritage.org/press/newsreleases/nr042605a.cfm (summarizing a Heritage Foundation study reporting that more than one million families homeschool their children and more than 624,000 use vouchers, tax credits, or tax deductions to attend the schools of their choice).
20. LIBERTY & LEARNING: MILTON FRIEDMAN'S VOUCHER IDEA AT FIFTY (Robert C. Enlow & Lenore T. Ealy eds., 2006) (reexamining Friedman's school vouchers proposal from theoretical and practical perspectives).
21. MILTON FRIEDMAN, CAPITALISM AND FREEDOM 85-107 (1964) [hereinafter FRIEDMAN, CAPITALISM];
22. Milton Friedman, The Role of Government in Education, in ECONOMICS AND THE PUBLIC INTEREST 123 (Robert A. Solo ed., 1955) [hereinafter Friedman, Role of Government].
23. Our Founders, FOUND. FOR EDUC. CHOICE, http://www.edchoice.org/About-Us/Our -Founders.aspx (last visited Oct. 11, 2010);
24. What We Do, FOUND. FOR EDUC. CHOICE, http://www.edchoice.org/Foundation-Services/What-We-Do.aspx (last visited Oct. 11, 2010).
25. Friedman, Role of Government, supra note 16, at 124-135.
26. Nick Gillespie, The Father of Modern School Reform, REASON, Dec. 2005, at 44+46, available at http://www.reason.com/news/show/36333.html.
27. Friedman, Role of Government, supra note 16, at 131 n.2.
28. Dan Wakefield, Respectable Racism, NATION, Oct. 22, 1955, at 339, reprinted in REPORTING CIVIL RIGHTS, PART ONE: AMERICAN JOURNALISM 1941-1963, at 222, 222-23 (2003).
29. Harrison v. Day, 106 S.E.2d 636 (Va. 1959) (holding that the legislation closing integrated schools and cutting off state funds for such schools violated the Virginia Constitution).
30. James v. Almond, 170 F. Supp. 331 (E.D. Va. 1959) (per curiam) (denying motions to dismiss a challenge to the school closing law).
31. Griffin v. Cnty. Sch. Bd., 377 U.S. 218 (1964) (discussing this history).
32. J. KENNETH MORLAND, THE TRAGEDY OF PUBLIC SCHOOLS: PRINCE EDWARD COUNTY, VIRGINIA: A REPORT FOR THE VIRGINIA ADVISORY COMMITTEE TO THE UNITED STATES COMMISSION ON CIVIL RIGHTS 12 (1964), available at http://www.library.vcu.edu/jbc/speccoll/report1964.pdf. The lawfulness of racial exclusion in private settings itself reflects a series of public policy choices.
33. Imani Perry, Dismantling the House of Plessy: A Private Law Study of Race in Cultural and Legal History with Contemporary Resonances, 33 STUD. L. POL. & SOC'Y 91 (2004).
34. In Prince Edward County, the local NAACP organization tried to organize alternatives for black students while also challenging the resistance to desegregation.
35. Jill L. Ogline, Challenging the Conventional Narrative: Prince Edward County, the NAACP, and the Role of Litigation in the Civil Rights Movement (Sept. 28, 2004) (unpublished manuscript), available at www.allacademic.com/meta/p116576_index.html.
36. Griffin, 377 U.S. at 232.
37. Id. at 234.
38. For details on the Prince Edward County story OLIVER W. HILL SR., THE BIG BANG: BROWN V. BOARD OF EDUCATION AND BEYOND (Jonathan K. Stubbs ed., 2000).
39. Gerard Robinson, Freedom of Choice: From Brown to School Vouchers, SCH. REFORM NEWS, June 2004, http://www.heartland.org/Article.cfm?artId=15065.
40. Monroe v. Bd. of Comm'rs, 427 F.2d 1005, 1007 (6th Cir. 1970) (holding that these transfer options were unacceptable).
41. Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968). The Court noted: "Freedom of choice" is not a sacred talisman; it is only a means to a constitutionally required end-the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a "unitary, non-racial system.".
42. Id. at 440 (quoting Bowman v. Cnty. Sch. Bd., 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring)).
43. James Forman, The Secret History of School Choice: How Progressives Got There First, 93 GEO. L.J. 1287+1309-1312 (2005);
44. Christopher Jencks, Private Schools for Black Children, N.Y. TIMES, Nov. 3, 1968, § 6 (Magazine), at 30;
45. Theodore Sizer & Phillip Whitten, A Proposal for a Poor Children's Bill of Rights, PSYCHOL. TODAY, Apr. 1968, at 59.
46. PETER W. COOKSON, SCHOOL CHOICE: THE STRUGGLE FOR THE SOUL OF AMERICAN EDUCATION 75-76 (1994);
47. Forman, supra note 32, at 1312;
48. Eliot Levinson, The Alum Rock Voucher Demonstration: Three Years of Implementation (RAND Paper Series, Paper No. P- 5631, 1976), available at http://www.rand.org/pubs/papers/P5631/. Initial reports of declines in reading achievement seem to reflect methodological difficulties rather than a genuine effect.
49. Paul M. Wortman, Charles S. Reichardt & Robert G. St. Pierre, The First Year of the Education Voucher Demonstration: A Secondary Analysis of Student Achievement Test Scores, 2 EVALUATION Q. 193 (1978).
50. Scott Gelber, "The Crux and the Magic": The Political History of Boston Magnet Schools, 1968-1989, 41 EQUITY & EXCELLENCE EDUC. 453 (2008);
51. Christine H. Rossell, Magnet Schools: No Longer Famous but Still Intact, EDUC. NEXT, Spring 2005, at 44, available at http://findarticles.com/p/articles/mi_m0MJG /is_2_5/ai_n13487200/.
52. 'Super Highs' Sought: Estes Unveils Plan for Specialty Schools, DALLAS MORNING NEWS, Aug. 1971, at 37A.
53. Armstrong High School, RICHMOND PUB. SCHOOLS, http://www.richmond.k12.va.us/history/armstrong.html (last visited Nov. 13, 2010).
54. Education: Integration By Magnets, TIME, June 16, 1975, at 66, available at http://www.time.com/time/magazine/article/0,9171,917542-1,00.html.
55. U.S.C. § 7231a (2006) ("[T]he term magnet school' means a public elementary school, public secondary school, public elementary education center, or public secondary education center that offers a special curriculum capable of attracting substantial numbers of students of different racial backgrounds.").
56. Grace Chen, What Is a Magnet School?, PUB. SCH. REV. (Dec. 4, 2007), http://www.publicschoolreview.com/articles/2;
57. Who We Are, MAGNET SCHOOLS OF AMERICA, http://www.magnet.edu/modules/info/who_we_are.html (last visited Oct. 11, 2010).
58. Chen, supra note 39.
59. Missouri v. Jenkins, 515 U.S. 70 (1995).
60. Id. at 76.
61. Id.
62. Jenkins ex rel. Agyei v. Missouri, 855 F.2d 1295, 1301 (8th Cir. 1988), aff'd in part, rev'd in part sub nom. Missouri v. Jenkins, 495 U.S. 33 (1990).
63. William F. Doherty, School Admissions Policy Defended, BOSTON GLOBE, Feb. 10, 1998, at B1.
64. Chen, supra note 39.
65. Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998). A shift to class-based admissions could preserve some features of diversity but would not ensure access to competitive schools for the most disadvantaged minority youth.
66. Gabriel O'Malley, An Effective Compromise: Class-Based Affirmative Action in Boston Schools, NEW ENG. J. PUB. POL'Y, Spring/Summer 2001, at 97, available at http://www.mccormack.umb.edu/centers/nejpp/articles/16_2/6_omalleyg.pdf.
67. Another case signaling the end of race-conscious admissions as a technique to end desegregation in magnet schools is Ho v. San Francisco United School District. Ho was a class action filed in 1994 that ended with a settlement terminating race-conscious admissions practices initially instituted by a court-ordered school desegregation remedy.
68. Ho v. S.F. Unified Sch. Dist., 147 F.3d 854 (9th Cir. 1998) (dismissing an appeal of the district court's denial of an injunction);
69. Ho v. S.F. Unified Sch. Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999) (ending in settlement). For competing assessments, compare Jeff Chang, On the Wrong Side: Chinese Americans Win Anti-Diversity Settlement-and Lose in the End, COLORLINES, Summer 1999, at 12, available at http://www.colorlines.com/article.php?ID=322, with The San Francisco Ho Case, ASIAN AM.
70. LEGAL FOUND., http://www.asianamericanlegal.com/index.php?option (last visited Oct. 11, 2010).
71. Ted Jou, Grutter Goes Back to School: Revisiting Ho v. San Francisco United School District (unpublished manuscript) (June 2005), available at http://www.ugcs.caltech.edu/~tjou/words/law/GrutterSchool.pdf (analyzing the impact of Grutter on the goals of the Asian American Legal Foundation as seen in Ho).
72. Grutter v. Bollinger, 539 U.S. 306 (2003).
73. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
74. 551 U.S. 701. Cambridge, Massachusetts, the site of a model controlled choice plan, replaced attention to racial balance with socioeconomic balance in 2001.
75. Edward B. Fiske, Controlled Choice in Cambridge, Massachusetts, in DIVIDED WE FAIL: COMING TOGETHER THROUGH PUBLIC SCHOOL CHOICE 167 (Century Found. Task Force on the Common Sch. ed., 2002). Controlled choice plans can avoid exacerbating segregation by race and class.
76. Richard D. Kahlenberg, Public School Choice: Student Achievement, Integration, Democracy, and Public Support, in PUBLIC SCHOOL CHOICE VS. PRIVATE SCHOOL VOUCHERS 137 (Richard D. Kahlenberg ed., 2003).
77. Beth Daley, Most Pupils Who Tested Twice Admitted, BOSTON GLOBE, Oct. 28, 1997, at B1.
78. Amy Stuart Wells et al., Charter Schools and Racial and Social Class Segregation: Yet Another Sorting Machine?, in PUBLIC SCHOOL CHOICE VS. PRIVATE SCHOOL VOUCHERS 81.
79. supra note 51, at 85-86.
80. Martha Minow, Reforming School Reform, 68 FORDHAM L. REV. 257+263 (1999) (noting that religious schools are sometimes the only options for parents wanting to avoid failing public schools);
81. Jeffrey R. Henig, Book Review, 89 AM. POL. SCI. REV. 1039 (1995) (arguing that empirical data may suggest that choice in national school systems does not improve results).
82. Lemon v. Kurtzman, 403 U.S. 602 (1971).
83. Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). Similarly, in Sloan v. Lemon, 413 U.S. 825 (1973), the Court rejected a statute reimbursing parents for $150 or $75 paid as tuition to nonpublic schools.
84. Aguilar v. Felton, 473 U.S. 402 (1985).
85. Wolman v. Walter, 433 U.S. 229 (1977).
86. E.g., Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980) (allowing reimbursement to nonpublic schools, including parochial schools, for the expenses involved in maintaining records and administered tests required by the state);note.
87. Bd. of Educ. v. Allen, 392 U.S. 236 (1968) (permitting the government to loan secular textbooks to students in nonpublic schools).
88. Mueller v. Allen, 463 U.S. 388 (1983).
89. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990);
90. Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1 (2000);
91. Michael W. McConnell, Religious Participation in Public Programs: Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115 (1992);
92. Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 HARV. L. REV. 989 (1991). This view should be distinguished from the conception that religion should never be treated differently from other personal views or commitments. Christopher Eisgruber and Lawrence Sager argue that equality would forbid the government from treating religion differently from any other category even if that difference takes the form of a preference or accommodation.
93. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245 (1994).
94. McConnell, then a law professor, later became a federal judge before returning recently to the academy. Clint Bolick got his professional start with the Mountain States Legal Foundation, funded by conservative businessman Joseph Coors and led by James Watt, who later headed the Department of the Interior under President Ronald Reagan. Bolick then worked for the Equal Employment Opportunity Commission under conservative Clarence Thomas (whom President George H.W. Bush later appointed to the Supreme Court). Subsequently, Bolick developed the Landmark Legal Foundation to adopt the long-term strategies of the NAACP Legal Defense Fund to pursue what he called libertarian aims.
95. STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 79-80+85-245 (2008).
96. Agostini v. Felton, 521 U.S. 203 (1997), overruling Aguilar v. Felton, 473 U.S. 402 (1985).
97. 536 U.S. 639 (2002).
98. Id. at 645.
99. Id. at 676-84 (Thomas, J., concurring);
100. id. at 682 ("While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society.").
101. id. at 680-84 (discussing freedom-of-choice plans);
102. id. at 682 (discussing Reconstruction and racial issues).
103. Similarly, Justice Souter in dissent criticized the majority's inclusion of the public magnet and community schools in assessing the constitutionality of the plan. For Justice Souter, the proper question was whether public dollars were used to enable choice of private religious institutions. He noted: The majority's view that all educational choices are comparable for purposes of choice thus ignores the whole point of the choice test: it is a criterion for deciding whether indirect aid to a religious school is legitimate because it passes through private hands that can spend or use the aid in a secular school. The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one. The majority now has transformed this question about private choice in channeling aid into a question about selecting from examples of state spending (on education) including direct spending on magnet and community public schools that goes through no private hands and could never reach a religious school under any circumstance. When the choice test is transformed from where to spend the money to where to go to school, it is cut loose from its very purpose.
104. Id. at 699 (Souter, J., dissenting).
105. Justice Breyer, also writing in dissent, went even further by rejecting evidence of parental choice as insufficient to overcome the Establishment Clause's commitment to guard against the kinds of religious-based social divisions that could come with contests over public dollars.
106. Id. at 728 (Breyer, J., dissenting).
107. Carol Ascher & Nathalis Wamba, An Examination of Charter School Equity, in SCHOOL CHOICE AND DIVERSITY: WHAT THE EVIDENCE SAYS 77 (Janelle T. Scott ed., 2005).
108. Stephen Macedo, Constituting Civil Society: School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values, 75 CHI.-KENT L. REV. 417+436 (2000). Ohio ultimately changed the plan to include a larger region. OHIO REV. CODE ANN. §§ 3313.976-998 (LexisNexis 2009).
109. JAMES E. RYAN, FIVE MILES AWAY, A WORLD APART: ONE CITY, TWO SCHOOLS, AND THE STORY OF EDUCATIONAL OPPORTUNITY IN MODERN AMERICA (2010);
110. Peter Schrag, "F" Is for Fizzle: The Faltering School Privatization Movement, AM. PROSPECT, May-June 1996, at 67, available at http://www.prospect.org/cs/articles?article=f_is_for_fizzle.
111. RYAN, supra note 70, at 207-09, 230-31. Nascent advocacy by libertarian commentators to establish a constitutional right to school choice where legislatures or school boards do not enact it have failed, matching prevailing political views.
112. Education, U.S. FREEDOM FOUND., http://www.freedomfoundation.us/education (last visited Oct. 11, 2010);
113. David W. Kirkpatrick, Nonpublic Schools and the Courts, SCH. REFORM NEWS, Sept. 2003, http://www.heartland.org/policybot/results/12757/Nonpublic_Schools_and_the_Courts.html.
114. Sol Stern, School Choice Isn't Enough: Instructional Reform Is the Key to Better Schools, CITY J., Winter 2008, at 53+54.
115. Greg Anrig, An Idea Whose Time Has Gone: Conservatives Abandon Their Support for School Vouchers, WASH. MONTHLY, Apr. 2008, at 29+32-33;
116. Frederick M. Hess, Fulfilling the Promise of School Choice, AM. ENTERPRISE INST. (Sept. 2008), http://www.aei.org/docLib/20080925_EducationalOutlook_g.pdf (reporting how even staunch defenders of school choice concede disappointing results).
117. Public aid to private school education is not over, however. In 2008, Georgia joined five other states by enacting a 50 million scholarship tax credit offering one-hundred-percent tax credits for donations by corporations to pay for scholarships to enable low-income students to attend private schools.
118. Press Release, Alliance for Sch. Choice, Georgia Gov. Sonny Perdue Approves $50 Million School Choice Program (May 14, 2008), available at http://www.prnewswire.com/news-releases/georgia-gov-sonny-perdue-approves-50-million-school-choice-program-57248997.html.
119. Choices, N.Y.C. DEP'T EDUC., http://schools.nyc.gov/ChoicesEnrollment/High/Choices/default.htm (last visited Oct. 11, 2010).
120. Martin H. Malin & Charles Taylor Kerchner, Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?, 30 HARV. J.L. & PUB. POL'Y 885+892 (2007);
121. Jonathan P. Krisbergh, Comment, Marginalizing Organized Educators: The Effect of School Choice and 'No Child Left Behind' on Teacher Unions, 8 U. PA. J. LAB. & EMP. L. 1025 (2006);
122. SARA MEAD & ANDREW J. ROTHERHAM, EDUC. SECTOR, A SUM GREATER THAN THE PARTS: WHAT STATES CAN TEACH EACH OTHER ABOUT CHARTER SCHOOLING 1, 10 (2007), available at http://www.educationsector.org/usr_doc/CharterSchoolSummary.pdf.
123. Arne Duncan, U.S. Sec'y of Educ., Remarks to the National Education Association: Partners in Reform (July 2, 2009), available at http://www.ed.gov/news/speeches/partners-reform (discussing, inter alia, the role of unions in school reform).
124. 1991 MINN. LAWS 1123-33.
125. Answers to Frequently Asked Questions, US CHARTER SCHOOLS, http://www.uscharterschools.org/pub/uscs_docs/o/faq.html#2 (last visited Oct. 1, 2010). Nationwide, there were a total of 4578 charter schools operating in 2009, with a total of 1,407,421 students enrolled. CTR. FOR EDUC.
126. REFORM, THE ACCOUNTABILITY REPORT 2009: CHARTER SCHOOLS 8 (2009), available at http://www.edreform.com/accountability;
127. Sam Dillon, Ohio Goes After Charter Schools That Are Failing, N.Y. TIMES, Nov. 8, 2007, at A26 (noting the existence of four thousand charter schools);
128. Press Release, Ctr. for Educ. Reform, Number of Charter Schools Up 11 Percent Nationwide: More than Half of Charter Students Are Low-Income or Minority (May 10, 2007), available at http://www.edreform.com/Archive/?Number_of_Charter_Schools_Up_11_Percent_NationwideMore_than_Half_of_Charter_Students_Are_LowIncome_or_Minority (noting 3940 charter schools operating in 2007).
129. Characteristics of the 100 Largest Public Elementary and Secondary School Districts in the United States: 2005-06, NAT'L CTR. FOR EDUC. STAT., tbl.A-7 (June 26, 2008), http://www.nces.ed.gov/pubs2008/100_largest_0506/tables/table_a07.asp (providing national charter school data for the 2005-2006 school year);
130. Press Release, Ctr. For Educ. Reform, supra note 77.
131. Jay Mathews, Charter Schools' Big Experiment: New Orleans's Post-Katrina Test May Offer Lessons for Ailing Systems, WASH. POST, June 9, 2008, at A1;
132. Susan Saulny, U.S. Gives Charter Schools a Big Push in New Orleans, N.Y. TIMES, June 13, 2006, at A19.
133. For a caution that the New Orleans experiment jeopardizes accountability by loosening state and federal requirements, see Danielle Holley-Walker, The Accountability Cycle: The Recovery School District Act and New Orleans' Charter Schools, 40 CONN. L. REV. 125 (2007).
134. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099 (2005) (proposing a model of "second-order diversity" for decisionmaking bodies). CASS R. SUNSTEIN, REPUBLIC.COM 2.0 (2007).
135. Richard A. Shweder, After Just Schools: The Equality-Difference Paradox and Conflicting Varieties of Liberal Hope, in JUST SCHOOLS: PURSUING EQUALITY IN SOCIETIES OF DIFFERENCE 254+259 (Martha Minow, Richard A. Shweder & Hazel Rose Markus eds., 2008).
136. Nancy Mitchell, Charters More Diverse, ROCKY MTN. NEWS, Dec. 20, 2005, at 6A.
137. Katherine Kersten, Don't Protest, Just Shop Somewhere Else, WALL ST. J., Mar. 2, 2006, at A15 (reporting statistics compiled by the Center for School Change at the University of Minnesota's Humphrey Institute).
138. MINOW, supra note 1, at 96.
139. Gordon Y.K. Pang, Native Hawaiian Students Bloom in Charter Schools, HONOLULU ADVERTISER, Nov. 15, 2006, at A1 (describing statistics from a Kamehameha schools study).
140. Joe Robertson, KC Considers Extending African-Centered Schools, KAN. CITY STAR, Feb. 6, 2006, at A-1.
141. Therein, Robertson explained: Advocates describe [African-centered education] as an academic and characterbuilding program guided by African and African-American cultural and intellectual traditions. Students who otherwise might think the culture is inferior are immersed in it and presented with role models. They don't have to overcome anything, but can expect to excel as who they are.
142. Id.
143. Regina Jennings, Institute of Positive Education, in ENCYCLOPEDIA OF BLACK STUDIES 272 (Mambo Ama Mazama & Molefi Kete Asante eds., 2004);
144. Rosalind Rossi, School Bd. Approves Plans for Final 2 Charter Schools, CHI. SUN-TIMES, Apr. 30, 1998, at 20.
145. Kersten, supra note 84;
146. Judy Putnam, Michigan Has More Segregated Schools: Charters That Draw Students from Mostly Black Schools Drive Up Numbers, GRAND RAPIDS PRESS, Feb. 15, 2006, at A1.
147. Steve Brandt, Minority Students Continue Minneapolis Schools Exodus, STAR TRIB. (Minneapolis), Feb. 22, 2006, at 3B.
148. Linda A. Renzulli, District Segregation, Race Legislation, and Black Enrollment in Charter Schools, 87 SOC. SCI. Q. 618+620-622 (2006).
149. id.
150. Gregory R. Weiher & Kent L. Tedin, Does Choice Lead to Racially Distinctive Schools? Charter Schools and Household Preferences, 21 J. POL'Y ANALYSIS & MGMT. 79+90-91 (2002).
151. Wells et al., supra note 53, at 81.
152. Lynn Schnaiberg, Charter Schools: Choice, Diversity May Be at Odds, EDUC. WK., May 10, 2000, at 1.
153. Alexandra O'Rourke, Rethinking Race and Education: Ethnocentric Charter Schools and the Law (May 19, 2006) (unpublished manuscript) (on file with author).
154. One such school triggered national controversy. Anthony DiMaggio, Arabic as a Terrorist Language: The Right-Wing's War on the Gibran Academy, COUNTERPUNCH (Aug. 30, 2007), http://www.counterpunch.org/dimaggio08302007.html.
155. Peg Meier, An Oasis for Learning, STAR TRIB. (Minneapolis), Feb. 2, 2003, at 1E.
156. TWIN CITIES INT'L ELEMENTARY SCH., http://www.twincitiesinternationalschool.org/ (last visited Oct. 11, 2010).
157. In a 2001 study by the American Muslim Council, American Muslims ranked school choice as their top political priority. Dan Lips, School Choice: Right for America, CATO INST., http://www.cato.org/research/education/articles/schoice.html (last visited Oct. 11, 2010).
158. Larry Yudelson, N.J. School May Get Hebrew Track, JEWISH DAILY FORWARD, Feb. 27, 2009, at 5.
159. Abby Goodnough, Hebrew Charter School Spurs Florida Church-State Dispute, N.Y. TIMES, Aug. 24, 2007, at A1;
160. Note, Church, Choice, and Charters: A New Wrinkle for Public Education?, 122 HARV. L. REV. 1750+1757-1769 (2009);
161. Karen Matthews, Debate Rages over Hebrew Charter School in NYC, ASSOCIATED PRESS, Feb. 3, 2009, available at http://www.msnbc.msn.com/id/28992198/.
162. U.S. DEP'T OF EDUC., PRESERVING A CRITICAL NATIONAL ASSET: AMERICA'S DISADVANTAGED STUDENTS AND THE CRISIS IN FAITH-BASED URBAN SCHOOLS 40 (2008), available at http://www.ed.gov/admins/comm/choice/faithbased/report.pdf (reporting that the administration of President George W. Bush endorsed the use of charter schools to permit greater religious expression within public school settings).
163. Luis A. Huerta, Losing Public Accountability: A Home Schooling Charter, in INSIDE CHARTER SCHOOLS: THE PARADOX OF RADICAL DECENTRALIZATION 177 (Bruce Fuller ed., 2000).
164. id.
165. Julie F. Mead, Charter Schools Designed for Children with Disabilities: An Initial Examination of Issues and Questions Raised, US CHARTER SCHOOLS 11 (2008), http://www.uscharterschools.org/specialedprimers/download/special_report_mead.pdf.
166. Lauren Morando Rhim et al., Charter School Statutes and Special Education: Policy Answers or Policy Ambiguity?, 41 J. SPECIAL EDUC. 50+55-56 (2000).
167. Mead, supra note 106, at 11-12.
168. Florida directed the commission charged with approving charter school applications to examine the feasibility of charter schools specifically for students with disabilities, including autism.
169. FLA. STAT. § 1002.335(4)(b)(13) (2007).
170. Mead, supra note 106, at 10.
171. Single-Sex Schools/Schools with Single-Sex Classrooms/What's the Difference?, NAT'L ASS'N FOR SINGLE SEX PUB. EDUC., http://www.singlesexschools.org/schools-schools.htm (last visited Oct. 10, 2010).
172. Pete Sherman, Single-Sex Schools May Open in Fall, ST. J.-REG. (Springfield, Ill.), Apr. 21, 2009, at 15.
173. Heather Gerken has raised this point with me and in her scholarship.
174. Gerken, supra note 80, at 1109.
175. For analyses and case studies addressing these contrasting goals, see JUST SCHOOLS: PURSUING EQUALITY IN SOCIETIES OF DIFFERENCE, supra note 82.
176. For example, Diane Ravitch has raised questions about the effectiveness of earlier black power, local control efforts, and current school choice initiatives.
177. DIANE RAVITCH, THE DEATH AND LIFE OF THE GREAT AMERICAN SCHOOL SYSTEM: HOW TESTING AND CHOICE ARE UNDERMINING EDUCATION 113-147 (2010);
178. DIANE RAVITCH, THE TROUBLED CRUSADE: AMERICAN EDUCATION, 1945-1980, at 268-71 (1983);
179. DEREK EDGELL, THE MOVEMENT FOR COMMUNITY CONTROL OF NEW YORK CITY'S SCHOOLS, 1966-1970: CLASS WARS (1998) (recounting the history of demands for decentralized and local control of New York City schools and its politics and outcomes);
180. David L. Kirp, Community Control, Public Policy, and the Limits of Law, 68 MICH. L. REV. 1355+1369-1370 (1970) (discussing, inter alia, the relationship between choice-based school reform and educational outcomes).
181. NAT'L CTR. FOR EDUC. STATISTICS, AMERICA'S CHARTER SCHOOLS: RESULTS FROM THE NAEP 2003 PILOT STUDY 4 (2004), available at http://nces.ed.gov/nationsreportcard/pdf/studies/2005456.pdf;
182. Janelle T. Scott, Introduction to SCHOOL CHOICE AND DIVERSITY: WHAT THE EVIDENCE SAYS, supra note 68, at 1, 1-3;
183. EDWARD B. FISKE & HELEN F. LADD, WHEN SCHOOLS COMPETE: A CAUTIONARY TALE 277-280 (2000) (studying the New Zealand choice experiment);
184. NEL NODDINGS, WHEN SCHOOL REFORM GOES WRONG 73-78 (2007) (questioning the relevance of measures of choice and test scores as they are frequently discussed);
185. KEVIN B. SMITH & KENNETH J. MEIER, THE CASE AGAINST SCHOOL CHOICE: POLITICS, MARKETS, AND FOOLS 55-61 (1995) (reviewing data showing that presence of school choice does not necessarily improve outcomes in a school system).
186. PAUL TOUGH, WHATEVER IT TAKES: GEOFFREY CANADA'S QUEST TO CHANGE HARLEM AND AMERICA (2008).
187. Charles Venegoni & David J. Ferrero, A Regulated Market Model: Considering School Choice in the Netherlands as a Model for the United States, in EDUCATING CITIZENS: INTERNATIONAL PERSPECTIVES ON CIVIC VALUES AND SCHOOL CHOICE 368+378-379 (Patrick J. Wolf & Stephen Macedo eds., 2004) (pointing out this tendency in the Netherlands's model of regulated school choice).
188. Cf. Gerken, supra note 80, at 1104 (describing the benefits of allowing civic institutions to be organized around identity-linked traits).
189. Shweder, supra note 82, at 275-76, 285.
190. EDUCATING CITIZENS: INTERNATIONAL PERSPECTIVES ON CIVIC VALUES AND SCHOOL CHOICE, supra note 118 (exploring school choice programs' effects on social division from a global perspective).
191. AMY GUTMANN, IDENTITY IN DEMOCRACY 38-44 (2003).
192. Zelman v. Simmons-Harris, 536 U.S. 639, 652-53 (2001) (alteration in original) (quoting Mitchell v. Helms, 530 U.S. 793, 810 (2000)).
193. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 736 (2007) (quoting Freeman v. Pitts, 503 U.S. 467, 495 (1992)).
194. Id. at 788-89 (Kennedy, J., concurring in part and concurring in the judgment).
195. Id. at 789.
196. NAACP LEGAL DEF. & EDUC. FUND, INC. & THE CIVIL RIGHTS PROJECT, STILL LOOKING TO THE FUTURE: VOLUNTARY K-12 SCHOOL INTEGRATION: A MANUAL FOR PARENTS, EDUCATORS, & ADVOCATES 34-41 (2008), available at http://naacpldf.org/files/publications/Still_Looking_to_the_Future_Voluntary_K-12_School_Integration;_A_Manual_for_Parents,_Educators_and_Advocates.pdf.
197. Am. Civil Rights Found. v. Berkeley Unified Sch. Dist., 90 Cal. Rptr. 3d 789 (Ct. App. 2009).
198. LEONARD S. RUBINOWITZ & JAMES E. ROSENBAUM, CROSSING THE CLASS AND COLOR LINES: FROM PUBLIC HOUSING TO WHITE SUBURBIA 49-72 (2000).
199. William A. Fischel, The Congruence of American School Districts with Other Local Government Boundaries: A Google-Earth Exploration 14-22 (Apr. 2010) (unpublished manuscript), available at http://ssrn.com/abstract=967399.
200. Taryn Williams, Outside the Lines: The Case for Socioeconomic Integration in Urban School Districts, 2010 BYU EDUC. & L.J. 435+455-456.
201. Id. at 461.
202. BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS (2004).
203. Id. at 75.
204. Id. at 44.
205. Julen Etxabe, Nomos, Conflict, and the Tragedy of Adjudication: The Jurisprudence of Robert Cover 67-70 (bepress Legal Series, Working Paper No. 1899, 2006), available at http://law.bepress.com/expresso/eps/1899