Rapidly expanding charter and voucher programs are es\u00ad tablishing a new education paradigm in which access to tradi\u00ad tional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trqjectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional right to pub\u00ad lic education embedded in allfijty state constitutions.<\/p>\n\n\n\n
Importantly, this Article departs from past constitutional arguments against charter and voucher programs. Past argu\u00ad ments have attempted to prohibit such programs entirely and have assumed, with little evidentiary support, that they en\u00ad danger statewide education systems. Unsurprisingly, litiga\u00adtion and scholarship based on a flawed premise have thus far failed to slow the growth of charter and voucher programs. Without a re.framed theory, several recentlyfiled lawsuits are likely to suffer the same fate.<\/p>\n\n\n\n
This Article does not challenge the general constitutional\u00ad ity of choice programs. Instead, the Article identifies two limi\u00adtations that state constitutional rights to education place on choice policy. The first limitation is that states cannot prefer\u00adence private choice programs over public education. This con\u00ad clusion flows from the fact that most state constitutions mandate public education as a first-order right for their citi\u00ad zens. Thus, while states may establish choice programs, they cannot systematically advantage choice programs over public education. This Article demonstrates that some states have crossed this line.<\/p>\n\n\n\n
The second limitation that state constitutions place on choice programs is that their practical effect cannot impede educational opportunities in public schools. Education clauses in state constitutions obligate the state to provide ade\u00ad quate and equitable public schools. Any state policy that de\u00ad prives students of access to those opportunities is therefore unconstitutional. Often-overlooked district level data reveals that choice programs are reducing public education funding, strati.fying opportunity, and intensifying segregation in large urban centers. Each of these effects represents a distinct con\u00ad stitutional violation.<\/p>\n\n\n\n