new parental rights challenge to school control: Has the Supreme Court mandated school choice?, The

Journal of Law and Education, Apr 2003 by Bloom, Ira

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.