As education choice options expand for families across the nation, opponents are stepping up their fight to preserve the status quo.

Observers say these conflicts are examples of growing pains that come when a society undergoes transformational change.

“It’s just part of the cost of doing business,” said Michael Q. McShane, director of national research at EdChoice, a national nonprofit think tank. “Educators are not alone in challenging policies they don’t like. New laws get passed; people who can’t do things democratically try to do things through the courts.”

Michael B. Horn used a famous quote (often misattributed to Mohandas Gandhi) to describe the spate of lawsuits: “First they ignore you, then they laugh at you, then they fight you, then you win.”

“I think we’ve entered the fight stage,” said Horn, the co-founder, distinguished fellow, and chairman of the Clayton Christensen Institute and an author of several books on disruptive innovation. “Education choice has gotten big enough that the entrenched interests dedicated to preserving the status quo are starting to see it as a threat.”

Legal fights over education choice began in the 1800s when Catholic families opposed the Protestantism taught in public schools. In 1925, the U.S. Supreme Court ruled in Pierce v. Society of Sisters that parents had the right to put their children in private schools. In 2002, the high court issued another landmark decision, Zelman v. Simmons-Harris, which upheld an Ohio scholarship that allowed parents to spend the money on religious schools. The high court found that when the parent controls the expenditure, the state has no role in determining whether the parent will choose to use funding at a religious or secular school.

With the Zelman ruling settling that question, choice opponents began trying to insert race-based arguments using the language of state constitutions. Michael Bindas, a senior attorney at the Institute for Justice who argued the landmark case Carson v. Makin before the U.S. Supreme Court, outlined that shift in a paper published in the Syracuse Law Review. According to Bindas, common arguments center on education clauses requiring states to maintain uniform or common public school systems. Education choice opponents, he said, take that a step further and claim that private scholarship programs could upset racial balances that state constitutions require state governments to maintain. They also argue that the requirements that states maintain public school systems bar them from establishing concurrent private education choice programs. Lower court judges in Ohio and Utah recently cited this argument in striking down choice programs. Ohio plaintiffs also raised the issue of racial balance argument, which the judge rejected.

McShane and Horn say the spate of lawsuits won’t stop education choice programs from becoming the norm in public education. However, they will delay the transition.

“Yes, these cases are a headache and can delay implementation, but school choice has a good track record,” McShane said. “It will take numbers and time, and it’s going to tip over into a different mindset.”

Where things stand

Montana: Families are waiting on a judge to rule on a lawsuit brought by opponents of a 2024 education savings account program for students with special needs. Plaintiffs argue that the law allowing reimbursements for $6,800 per child violates several provisions of the state constitution and redirects tax dollars to private institutions at the expense of students with special needs who remain in public schools. The judge denied the plaintiff’s motion for a temporary halt to the program, allowing families to continue using their ESAs while the case is pending.

Ohio: The state has appealed a lower court’s ruling that declared the state’s $700 million Educational Choice Scholarship Program (EdChoice)  unconstitutional. In siding with the coalition of school districts and other choice opponents, the judge said that the program was not a subsidy program, as the state argued, but a separate system of schools in violation of the state constitution. However, the judge rejected the plaintiffs’ argument that the program violated the state constitution’s education clause by creating racial imbalances in the district schools. The 10^th District Court of Appeal is expected to hear the case in 2026.

Utah: Families are continuing to receive funds from the Utah Fits All scholarship program while a district court ruling in favor of a teachers union-backed lawsuit is under appeal to the state Supreme Court. A district judge ruled that the state constitution prevents lawmakers from using tax revenue to fund education programs other than public education, higher education, and services for people with disabilities. The judge rejected the state’s argument that it had met its funding obligations to public education and that nothing in the law prohibited it from funding a separate program to support families choosing private or home education.

Wyoming: Families seeking to use Steamboat Legacy Scholarship ESAs had to find other options for the 2025-26 school year after a trial judge blocked the state from distributing funds in July at the request of the Wyoming Education Association and other plaintiffs until the judge rules on their lawsuit against the program. The judge recently denied a motion by state officials and attorneys for two families to dismiss the lawsuit based on their argument that the plaintiffs lacked legal standing.

Missouri: Education choice advocates scored a win last month when a judge denied the teachers union’s request to freeze payments to the MOScholars K-12 scholarship program as their lawsuit continues. MOScholars began in 2021 as a tax credit program supported by private donors. Earlier this year, the state allocated $51 million to the program, prompting the Missouri Education Association to file the complaint, which contends that the allocation unconstitutionally diverts taxpayer funds to private schools.

Arkansas: The state’s Education Freedom Account program is being fought on two fronts. In June 2024, opponents sued in state court, arguing that the program illegally diverted tax dollars from the public school system to benefit private schools. The judge denied the state’s motion to dismiss the complaint, so state attorneys are appealing to the state Supreme Court.

The same plaintiffs filed another lawsuit a year later  in U.S. District Court.  It argues that the program violates the Establishment Clause of the First Amendment because “it aids in the establishment of religion” by providing state funding to private schools operated by religious organizations.  The state refutes that by arguing that the money can go to schools representing a wide variety of faiths, as well as secular schools.

They also argue that the program violates the Equal Protection clause of the 14^th Amendment because it discriminates against low-income families, families in rural areas where there are fewer private schools and students with disabilities, because private schools are exempt from the federal Individuals with Disabilities Education Act. The program is also discriminatory, according to the complaint, because private schools are not held to the same standards as public schools. The state attorney general has filed a motion to dismiss the case, arguing that the plaintiffs lack standing.

Kentucky: The Kentucky Supreme Court heard arguments on Sept. 11 about whether the state’s charter school funding law violates the state’s constitution. Charter schools have been legal in the Bluegrass State since 2017, but there was no state funding mechanism. Lawmakers passed House Bill 9, which allocated money to charter schools, which are publicly funded but independently managed. A trial court judge ruled in 2023 that the law violated the state constitutional ban on the use of tax dollars to support non-public education and the constitutional requirement for “an efficient system of common schools.”

 

 

 

 

 

 

John E. Coons was ahead of his time.  

Decades before the term “education savings account” became an integral part of the education choice movement, the law professor at the

University of California, Berkeley, and his former student, Stephen Sugarman, were talking about the concept. In their 1978 book, “Education by Choice: The Case for Family Control,” the two civil rights icons envisioned a model drastically different from the traditional one-size-fits-all, ZIP code-based school system inspired by the industrial revolution: 

“To us, a more attractive idea is matching up a child and a series of individual instructors who operate independently from one another. Studying reading in the morning at Ms. Kay’s house, spending two afternoons a week learning a foreign language in Mr. Buxbaum’s electronic laboratory, and going on nature walks and playing tennis the other afternoons under the direction of Mr. Phillips could be a rich package for a ten-year-old. Aside from the educational broker or clearing house which, for a small fee (payable out of the grant to the family), would link these teachers and children, Kay, Buxbaum, and Phillips need have no organizational ties with one another. Nor would all children studying with Kay need to spend time with Buxbaum and Phillips; instead, some would do math with Mr. Feller or animal care with Mr. Vetter.” 

Coons and Sugarman also predicted charter schools, microschools, learning pods and education navigators, although they called them by different names. 

Fast forward to Florida today, where the Personalized Education Program, or PEP, allows parents to direct education savings accounts of about $8,000 per student to customize their children’s learning. Parents can use the funds for part-time public or private school tuition, curriculum, a la carte providers, and other approved educational expenses. PEP, which the legislature passed in 2023 as part of House Bill 1, is the state’s second education savings account program; the first was the Gardiner Scholarship, now called the Florida Family Empowerment Scholarship for students with Unique Abilities, which was passed in 2014. 

Coons, who turned 96 on Aug. 23, has been a regular contributor to Step Up For Students' policy blogs over the years. Shortly after the release of his 2021 book, “School Choice and Human Good,” he was featured in a podcastED interview hosted by Doug Tuthill, chief vision officer and past president of Step Up For Students. 

“It is wrong to fight against (choice) on the grounds that it is a right-wing conspiracy,” said Coons, a lifelong Catholic whom some education observers describe as “voucher left.”  “It’s a conspiracy to help ordinary poor people to live their lives with respect.” 

In 2018, Coons marked the 40th anniversary of “Education by Choice” by reflecting on it and his other writings for NextSteps blog. 

 He said he hopes his work will “broaden the conversation” about the nature and meaning of the authority of all parents to direct their children’s education, regardless of income. 

“Steve (Sugarman) and I recognized all parents – not just the rich – as manifestly the most humane and efficient locus of power,” he wrote. “The state has long chosen to respect that reality for those who can afford to choose for their child. ‘Education by Choice’ provided practical models for recognizing that hallowed principle in practice for the education of all children. It has, I think, been a useful instrument for widening and informing the audience and the gladiators in the coming seasons of political combat.”

By John Kirtley

The Rev. H.K. Matthews passed away Monday at the age of 97. As I urge you to read in this obituary, he was one of the towering figures in the Florida civil rights movement.

He was arrested over 30 times fighting for equal rights in Northwest Florida. He was beaten, along with John Lewis and other brave activists, on the Edmund Pettus Bridge in their first attempt to march from Selma to Montgomery. There is now a park named in his honor in Pensacola. You can also read his autobiography, “Victory After The Fall.”.

On a 2010 visit to Pensacola to recruit schools for the Florida Tax Credit Scholarship program, former Step Up For Students grassroots organizer Michael Benjamin and I met the operator of a faith-based school in town. He urged us to meet with Rev. Matthews, who he thought might respond well to the social justice message of the scholarship program. At the time, the average household income of our students was less than $30,000, and 75% were minorities. Michael and I said we would love to meet him.

Rev. Matthews didn’t say much during our initial visit; Michael and I explained how the scholarship program empowered low-income families to choose a different school if the one they were assigned to wasn’t working for them. He seemed to just take it all in but offered neither affirmation nor disagreement.

Almost as an afterthought, I invited him to a march and rally we were having the next month in Tallahassee. We needed the legislature to pass a bill to expand the scholarship program to relieve our waitlist, and we asked scholarship families to come to the Capitol to show their support. To my surprise, he agreed to attend.

On that day, over 6,000 people marched from the convention center to the Capitol. I invited Rev. Matthews to walk in front of the crowd with other faith leaders. Normally I would never walk in the front row, but I wanted to make sure everything went smoothly for him. He was very quiet as the huge crowd marched.

When we had gathered for the rally in the Capitol, I placed him in a prominent seat on the stage. A few minutes into the event, he motioned me over and asked if he could speak to the crowd. I had no idea what he was going to say, but I wasn’t going to say no. I went to the minister running our show and asked him to introduce Rev. Matthews.

What would he say? Was he with us?

I soon had my answer.

“This reminds me of the old movement,” he said. “Seeing thousands walking in the streets, fighting for the right to determine their own future, to fight for what is best for their children. When I worked with Dr. King back in the day …”

When he said those words, there was a murmur in the crowd, both students and adults. These kids had read about Dr. King in their history books. Some of them knew that there were not one but two marches across the Pettus Bridge, and here was someone who was there at the first attempt, someone who took the blows.

He was indeed with us.

Immediately after the rally, Rev. Matthews was swarmed by students young and old, some asking questions about his time with Dr. King, some young ones who just wanted to touch him — I suppose just to make sure this hero was real. They did not let him go for at least 20 minutes.

I could tell at the time this moved him. He told me so later. After that day he would call me to ask if there was anything he could do to help the movement. We had him appear at events with donors, governors, and legislators.

He would lead another march for us in 2016, when over 10,000 people came to protest the lawsuit filed by the Florida teachers union demanding that the courts shut down the Tax Credit Scholarship, which would evict 80,000 poor kids from their schools. That day Rev. Matthews was joined at the front of the procession by Martin Luther King III, the son of the man Matthews marched with 50 years prior. You can watch a 60-second video of that march here.

I had the pleasure of joining him at his church in Brewton, Alabama, where he moved in later years. He was being honored for his years of service to that church. I was honored, though very surprised, when he called me up to speak that day. Luckily, the words to praise him came easily.

They come again easily today, but not without a few tears.

How fortunate I was to have my life intersect with his, however unlikely that would have been to me before this movement changed the course of my life.

How fortunate the education freedom movement was to have his blessing and his involvement.

How fortunate the state of Florida was to have his tireless efforts fighting for civil rights.

How fortunate, all.

Rest in peace, Rev. Matthews.

John Kirtley is founder and chairman of Step Up For Students.

June 1, 2025, marked the 100^th anniversary of the United States Supreme Court’s ruling in Pierce v. Society of Sisters- effectively the first victory of America’s school choice movement.

In 1922, the voters of Oregon had passed a ballot proposition, Measure 6, which required public school attendance for school age students, creating fines and jail sentences for non-compliance. Supported by the Ku Klux Klan and other nativist groups, the measure passed by a margin of 53% in favor, 47% opposed. Measure 6 took effect in 1926, but in the meantime, the Society of Sisters of the Holy Names of Jesus and Mary took the state of Oregon to court.

The Klan wanted all Oregon children to attend public schools so that they would be educated in a Klan-approved way in the hope of turning immigrant children into what the Klan considered “real Americans.” Wait…oh dear…hold on…I have a bucket and a towel for you…

When your retching subsides, do keep reading, as this story has a happy ending! The United States Supreme Court ruled unanimously in favor of the Society of Sisters and against the 53% of Oregon voters who endorsed illiberalism. The unanimous ruling read:

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.

One hundred years on, the education freedom movement owes a great debt to the Society of Sisters. We should, like the court, oppose any general power of the state to standardize children. Families should have the right to opt between a broad universe of meaningfully diverse schools and educational methods. People can voluntarily adopt standards as a part of selecting schools and service providers.

A century after Pierce vs. Society of Sisters, we have a great deal of work ahead of us.

 

Three decades ago, dozens of Black families in the Liberty City neighborhood of Miami enrolled their children in Florida’s first charter school. They didn’t know it, but they were kickstarting the most dramatic, statewide, educational shift for Black students in America.

Today, 140,000+ Black students in Florida are being educated outside district schools. They’re either in charter schools, in private schools using state choice scholarships, or outside full-time schools entirely using education savings accounts.

More details on this overlooked migration can be found in a new brief co-authored by Black Minds Matter founder Denisha Allen and myself. It’s a quick update to our 2021 report, “Controlling the Narrative: Parental Choice, Black Empowerment & Lessons from Florida.”

Over the past decade, the number of Black students in Florida enrolled in non-district options grew 86%, to 142,384. That’s more than one in five Black students in the state. For context, 31 states have fewer Black students in their public schools than Florida has in these options.

The numbers are a strong rebuttal to those who claim choice is aimed at helping wealthy, white families.

They’re also a good indicator of what’s next.

As choice programs continue to expand across America, look for even more Black families, educators and communities to embrace them.

 

The big story: Nearly 3,000 low-income students and their families now find themselves scrambling for education options a month into the new school year after the South Carolina Supreme Court tossed out the state’s fledgling education savings account program as unconstitutional. 

The state Department of Education announced on Wednesday afternoon that it has halted all tuition and fee payments being directed to private schools and courses. However, a department spokesperson said the actions relate only to payments made on or after Sept. 11 and that families would not have to return funds already spent. Also, all other allowable expenses would continue to be paid.

"The Department will work closely with parents to assess viable alternatives for their children if continued attendance at their current school is no longer an option, thanks to this lawsuit and subsequent ruling," department spokesperson Jason Raven said.

Raven added that the department will "do everything in its power to work with the Governor, General Assembly, and impacted schools to support the low-income families who are the victims of this ruling and will communicate with them regarding options that remain within the Education Scholarship Trust Fund program."

State Education Superintendent Ellen Weaver blasted the timing of the lawsuit, which the state NEA affiliate filed six months after the law’s passage and said the ruling “wreaks havoc” on families. 

  “Families cried tears of joy when the scholarship funds became available for their children, and today’s Supreme Court ruling brings those same families tears of devastation,” said Weaver, a school choice champion. “While I respectfully disagree with the holdings of the majority decision, I remain committed to working with the governor and the General Assembly to find a way forward to support these students and educational freedom for all South Carolina families. These students deserve better, and I will not rest until they get it.” 

The ruling: The 3-2 decision, handed down Wednesday, ruled that taxpayer dollars can’t be used to pay for private school tuition. It relied on the state’s Blaine Amendment, which keeps popping up as the battle for education choice shifts from federal to state courts in the wake of landmark U.S. Supreme Court rulings. The wording varies by state, with South Carolina’s version stating that taxpayer dollars cannot directly benefit private schools. At issue was what qualified as a direct benefit.

Specifically, the court struck down broad sections of the Education Scholarship Trust Fund (ESTF) – a program created last year by lawmakers and administered by the South Carolina Department of Education, which provides roughly 5,000 academic scholarships totaling $6,000 each for eligible K-12 students. 

Justice Garrison Hill wrote for the majority that the program already in place for this school year violates the state constitution’s prohibition against public dollars directly benefiting private schools and said he found the arguments in support of the program’s constitutionality were “unconvincing.”  

“They read our Constitution as allowing public funds to be directly paid to private schools as tuition as long as the funds are nudged along their path by the student, who may, through an online portal, choose to use the funds that way,” Hill wrote, with former Chief Justice Donald Beatty and acting Justice James Lockemy concurring. 

The other side: In a scathing dissent, newly installed chief justice John Kittredge, backed by justice John Few, wrote that “the majority opinion pays lip service to the policy-making role of the legislature.” 

“Our constitution allows the legislature — and only the legislature — to make this policy decision,” he wrote. 

Kittredge added that the funds flow through the state treasury to a third-party trust fund, then to a family’s account, which parents can direct to the school of their choice, which includes some private schools. 

“The majority opinion finds this is a direct benefit to the private school, that is, that public funds are ‘immediately’ going from the State Treasury to the private school,” he wrote. 

Kittredge also disputed that the program, which includes $30 million of the state’s $14 billion education budget, has harmed district schools, noting that the legislature has steadily increased funding each year and approved a record amount this past year.  

School choice leaders across the nation criticized the decision and expressed sympathy for the participating families. 

 “Today, a court overturned a duly passed piece of legislation on the basis of an indefensible misreading of the words of our State Constitution,” said Wendy Damron, president of Palmetto Promise Institute, a think tank that supports education choice. “It is unconscionable that the Supreme Court would rip away these scholarships from children and families counting on the funds for their education this year.” Damron encouraged state education officials to appeal. 

Neal McCluskey, director of the Cato Institute's Center for Educational Freedom, responded in a post on X: “Sad news for South Carolinians.” He added that Cato filed a brief in the case “making clear, among other things, that by empowering diverse families to freely seek what they think is right, choice is important to defusing social conflict.” 

Next steps: Gov. Henry McMaster said the state would ask the court to “expeditiously reconsider” its ruling due to concerns about effects it may have on other programs. 

Fallout for pre-Kand college programs: The ruling comes despite the existence of other state programs that have allowed pre-kindergarteners and college students to use public funds at private schools, which choice advocates say supports the constitutionality of the K-12 ESA program.  The pre-K program “is clearly in violation of the state constitution based on the school choice ruling,” Shawn Peterson, president of Catholic Education Partners, noted in an X post to point out the double standard.  

Possible long-term solution: Jason Bedrick, a research fellow at the Heritage Foundation suggested that the legislature act quickly and examine other funding methods such as a tax credit program in the wake of the court’s “flawed decision.” 

Public education is in the early stages of transitioning from its second to third paradigm.

In his 1962 book, The Structure of Scientific Revolutions, Thomas Kuhn described an organization’s paradigm as the lens through which the organization’s members perceive, understand, implement, and evaluate their work. A paradigm includes a set of assumptions and associated methodologies that guide a community’s determination of what is right and wrong and true and false.

A paradigm shift occurs when anomalies begin to occur, and some community members begin to question the veracity and effectiveness of their paradigm. Eventually, a few community members begin proposing new ways of understanding and implementing their work, and a prolonged contest emerges between the existing paradigm and proposed new paradigms. If a majority of the community ultimately decides a new paradigm enables them to be more successful, a paradigm shift occurs, and this new paradigm is adopted. In scientific communities, Kuhn calls these paradigm shifts scientific revolutions.

Paradigm shifts are disruptive because they require community members to reinterpret all previous work and adopt new ways of conducting and evaluating future work. Senior community members most strongly resist changing paradigms because their status comes from their application of the existing paradigm over many years. Consequently, paradigm changes are rare and require several decades to complete.

While Kuhn’s work focused on the role of paradigms in scientific communities, his description of how paradigms function and change is relevant for most organizations and communities, including public education.

Public education’s first paradigm shift occurred in the 1800s. The United States was a sparsely populated rural agrarian society in the 1700s and early 1800s, and public education was highly decentralized. Most children were homeschooled, and literacy focused primarily on reading the Bible. Religious organizations provided most of the structured instruction outside the home.

Public education’s paradigm during this period emphasized decentralization, family control, flexibility, basic literacy, and religious instruction.

This paradigm began failing as innovations in transportation and communications in the early 1800s started to connect the country and promote more industrialization and urbanization. About 90% of Americans lived on farms in 1800; 65% in 1850, and 38% in 1900. This transition from rural to urban created child care needs, and increased industrialization necessitated more people becoming more literate.

The influx of European immigrants in the early 1800s, most of whom were Catholic, caused Protestant-controlled state and local governments to see public schools as the best way to ensure newly arriving Catholic children would be properly assimilated and turned into good Protestants. However, this first paradigm was ill-equipped to address this concern.

By the early-to-mid 1800s, a consensus was forming that a new way of conceptualizing, organizing, and implementing public education (i.e., a new paradigm) was needed. First, a desire for greater centralized management and standardized instruction and curriculum led states to begin creating school districts to own and manage local public schools.

Next was the passing of mandatory school attendance laws. Massachusetts passed the nation’s first modern mandatory school attendance law in 1852 to help assimilate a growing influx of immigrants from Ireland and other predominantly Catholic countries. By 1900, 31 states had followed suit. Eventually, every state joined them, with Mississippi being the last to do so in 1918.

Mandatory attendance laws significantly increased school attendance, which created management challenges for school districts, especially in growing, urban communities. To address this surge in student attendance, school districts began adopting industrial mass production methods such as batch processing that enabled the nation’s manufacturers to produce large numbers of products with consistent quality at a lower cost.

In addition to centralizing school district management and standardizing instruction and curriculum, this new industrial model of public education replaced multi-age grouped students with age-specific grade levels which functioned like assembly line workstations that moved students annually from one grade level to the next en masse. This was the new lens through which government, educators, families, and the public were now seeing and judging public education. This was U.S. public education’s second paradigm.

Just as public education’s transition from its first to second paradigm was driven by changes in transportation, communications, and manufacturing innovations in the 1800s, the rise of digital networks, mobile computing, and artificial intelligence in the 21^st century is generating changes that are causing discontent with public education’s second paradigm.

Decentralization and customization are becoming core societal values that are transforming all aspects of people’s lives, including how we work, communicate, and consume media and entertainment. Consequently, decentralization and customization will be at the core of public education’s third paradigm.

Since public education is a government responsibility, this shift from the second to the third paradigm will impact government’s role in public education. Currently, government has a monopoly in the public education market, which undermines the market’s effectiveness and efficiency primarily because it underutilizes the market’s human capital.

In this emerging third paradigm, government will regulate the public education market but will no longer be a monopoly provider. This is like the role the government now plays in the food, housing, health care, and transportation markets. Most of the responsibility for how children are educated will shift from the government to families as families assume control over how most of their children’s public education dollars are spent.

This shift in government’s role from monopolist to regulator will require many operational changes. For example, as a public education monopoly, government holds its schools accountable for achieving performance goals. Without a government monopoly in the public education market, customers (i.e., families) will hold schools accountable for performance and change schools when they are dissatisfied.

Taxpayers also are customers in the public education market, and the government is responsible for meeting their needs through how it regulates this market. While families bear the responsibility for ensuring their children’s needs are met, government continues to be responsible for ensuring the public’s needs are met.

Kuhn’s research suggests that paradigm shifts are always long and contentious. This is particularly true for public education, given how much certain groups benefit financially and politically from the status quo. Lower-income students are the ones being most underserved by public education today and will benefit the most from public education becoming an effective and efficient market. But these students’ families have the least amount of political power.

In 1791,Thomas Paine proposed an ESA-type program for lower-income children in The Rights of Man. “Public schools do not answer the general purpose of the poor. They are chiefly in corporation towns, from which the country towns and villages are excluded; or if admitted, the distance occasions a great loss of time. Education, to be useful to the poor, should be on the spot; and the best method, I believe, to accomplish this, is to enable the parents to pay the expenses themselves.”

Paine’s recommended funding method was, “To allow for each of those children ten shillings a year for the expense of schooling, for six years each, which will give them six months schooling each year, and half a crown a year for paper and spelling books.”

More than 150 years after Paine’s proposal, Milton Friedman proposed a similar but more comprehensive plan in 1955 for making the public education market more effective and efficient. Now, almost 70 years later, we are starting to see some states adopt education choice programs similar to what Paine and Friedman suggested.

Apparently, U.S. public education is more fiercely resistant to change than the scientific communities Kuhn studied, but I am hopeful public education’s current paradigm shift will be completed within the next 30 to 40 years.

 

Education choice critics often assert that allowing families to choose the best learning environments for their children undermines our civic culture. They say our democracy is strengthened when children are required to attend public common schools.

The idea of public common schools originated in the early-to-mid 1800s in response to increased emigration from Europe. A surge of Irish immigration into Massachusetts led that state’s Protestant-dominated government to create the nation’s first mandatory school attendance law in 1852. Horace Mann, Massachusetts’ first secretary of education, led the campaign to teach Irish Catholic children how to be good Protestants in government-run common schools.

The Catholic community in Massachusetts and elsewhere rebelled against the Protestants’ public common schools and began creating Catholic schools. This ongoing conflict came to a head in Oregon in 1922 when the state amended its constitution to require all children to attend public (i.e., Protestant) common schools. The Ku Klux Klan (KKK) helped lead the effort to pass this amendment.

An order of Catholic nuns sued to prevent their Catholic school from being closed and prevailed in a 1925 U.S. Supreme Court decision, Pierce v. Society of Sisters. This decision ended the public common schools movement as envisioned by Mann, the KKK, and others, but the common school myth endures.

Education choice opponents regularly assert that returning to the days of most children attending public common schools is the best way to improve our polarized civic culture. But those days never existed. Most U.S. children have never attended public common schools. For most of our history, Black and white children attended racially segregated schools. My high school was racially segregated until my junior year (1971-72), which is about 140 years after Mann helped launch the common schools movement. Neighborhood attendance zones cause public schools to be segregated by family income. Public magnet schools separate students by interests and aptitude, and academic tracking within schools segregates students by academic achievement levels.

The non-existence of mythical public common schools does not refute the criticism that education choice programs undermine our civic culture. Fortunately, a growing body of research does refute this criticism and suggests education choice programs help improve our civic culture.

Patrick Wolf is a distinguished professor at the University of Arkansas’ College of Education and Health Professions. Wolf and his research team recently reviewed 57 studies that examined the relationship between private school choice and the quality of civic engagement. These studies consistently showed that participating in private school choice is associated with higher levels of political tolerance, political knowledge, and community engagement. Wolf concluded that, “Private schooling is a boost, not a bane, to the vibrancy of our democratic republic. The benefits of private schooling in boosting political tolerance are especially vital, as we need to be able to disagree with others without being disagreeable.”

Charles Glenn is professor emeritus of educational leadership and policy studies at Boston University’s Wheelock College of Education & Human Development. Glenn conducted research that helps explain Wolf’s findings.

Glenn examined the role Islamic schools play in helping Muslim immigrant children assimilate into the U.S. culture. He found these children assimilated much better when they attended Islamic schools that help them maintain their religious and cultural identity while successfully adapting to American values and norms. Glenn concluded that these schools helped students develop a sense of belonging in both their cultural community and the wider U.S. community by focusing on cultural preservation and adaptation. This dual focus was apparently crucial to helping these Muslim children successfully integrate into U.S. society.

Glenn’s findings are similar to what we see students experiencing in the education choice programs Step Up For Students manages. Most of the students we have served over the past 23 years have come from lower-income and minority families. When we poll these families as to why they are participating in our programs, the top answer is always safety.

All people, but especially children, have a basic need to be physically and psychologically safe. Children who do not feel safe in school go into fight or flight mode, which shows up as them refusing to go to school or going to school and constantly getting into trouble.

Parents regularly report amazing transformations in their child’s behavior when they use education choice scholarships to enroll their troubled child in a school where this child feels safe. While parents often see these changes as miraculous, these improvements reflect normal human psychology. Most people’s behavior is better when they feel safe and secure.

This need for safety and security while participating in public education is why education choice programs help improve our civic culture. As Glenn’s research shows, education choice programs help families find environments in which their children learn to feel secure about who they are and learn to use this security as the basis to interact appropriately with those who are different from them.

Much of the polarization and hostility we see in our civic culture stems from people feeling unsafe and insecure. The immigrant Muslim children Glenn studied learned to feel secure about themselves and their native culture in private Islamic schools and used this security as the basis to interact successfully with our diverse society. They became secure and confident and saw cultural differences as opportunities to learn and grow, not as threats.

The evidence suggests that the choice critics are wrong. Education freedom does not contribute to unhealthy social discourse. When done well, it is part of the solution.

As our country was being formed, states such as Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, South Carolina, and Virginia adopted state religions that citizens were taxed to fund and expected to follow. In response to this infringement on personal freedom, the U.S. Constitution was amended to include language, called the Establishment and Free Exercise Clauses, forbidding the establishment of a government religion and guaranteeing individuals the freedom to practice or not practice religion. These clauses read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Opponents of education choice programs that allow students to voluntarily use publicly funded education choice scholarships to pay for tuition at religious schools assert that these choice programs are unconstitutional primarily because they violate the Establishment Clause. In essence, legally equating families who freely choose to send their child to a religious school using a publicly funded scholarship with a government coercing people to support a state religion. The courts have made clear this argument has no merit and is dead on arrival. But opponents keep trying.

Teachers unions are the most aggressive opponents of education choice programs. The National Education Association (NEA), the nation’s largest teachers union, says, “Voucher programs drain resources from public schools and funnel those resources to private and religious schools, violating the Establishment Clause.” The second largest union, the American Federation of Teachers (AFT), agrees.

Other prominent opponents concur with the teachers unions’ reasoning. People for the American Way believes that "By using taxpayer money to fund private religious education, voucher programs violate the Establishment Clause.” The Freedom From Religion Foundation (FRF) writes that, "School voucher schemes unconstitutionally entangle government with religion by directing public funds to parochial schools, thereby violating the Establishment Clause."

Americans United for the Separation of Church and State (Americans United) asserts that education choice programs violate both the Establishment and Free Exercise Clauses. "School vouchers funnel taxpayer money to private religious schools…This violates the Establishment Clause and the religious freedom of taxpayers."

The Southern Poverty Law Center (SPLC) makes a similar argument. "School voucher programs that funnel taxpayer dollars to private, religious schools violate the Establishment Clause of the First Amendment by compelling taxpayers to support religious instruction and activities. Such programs erode the separation of church and state, a foundational principle of our democracy."

Suggesting that the Establishment and Free Exercise Clauses give individual taxpayers the right to circumvent elected representatives and decide for themselves how government spends their taxes is a rejection of democratic governance. Expecting a fire department to check with its local taxpayers to determine whose taxes may be used to fund putting out fires at churches is impractical.

The American Civil Liberties Union (ACLU) invents a “constitutional principle” when it claims, "Voucher programs, which divert taxpayer dollars to private, often religious schools, undermine the fundamental constitutional principle of separation of church and state.”

The phrase “separation of church and state” is not a constitutional principle. It does not appear in the U.S. Constitution. Thomas Jefferson used this phrase in an 1802 letter to the Danbury Baptist Association in Connecticut to reinforce the intent of the Establishment and Free Exercise Clauses, which is that government should not interfere with citizens’ right to practice or not practice religion unless this practice violates public laws. The state will not allow a religion to construct a building without a government permit or abuse children. The U.S. Constitution requires the relationship between religion and government to be appropriate but not nonexistent.

Beginning with the Zelman v. Simmons-Harris ruling in 2002 and continuing with the 2020 Espinoza v. Montana Department Revenue case and the Carson v. Makin decision in 2022, the U.S. Supreme Court has consistently ruled over the past two and a half decades that programs providing public funds to help families pay for educational services offered by religious organizations are constitutional, provided families make these choices freely. These court rulings suggest an Establishment Clause violation occurs only when a family’s decision to use public funds to pay a religious organization for educational services is influenced by government coercion.

Despite the weakness of their legal arguments, the ACLU, AFT, Americans United, FRF, NEA, and SPLC have supported lawsuits in Arizona, Florida, Indiana, Maine, Montana, Nevada, New Hampshire, North Carolina, Ohio, West Virgina, and Wisconsin challenging the constitutionality of K-12 programs that allowed families to purchase education services from religious organizations using public funds. But these groups have never legally challenged the constitutionality of prekindergarten and higher education students using public funds to attend religious schools.

Why do they support legally forbidding a high school senior from using public funds to pay tuition at a Catholic high school but look the other way two months later when this same student uses public funds to pay for tuition at the University of Notre Dame? The answer is tribal politics.

Humans are tribal. We are all members of multiple tribes, including tribes organized around political beliefs. To remain a tribal member, we must conform to that tribe’s beliefs, no matter how irrational they may appear to those outside the tribe.

Most of the AFT’s and NEA’s dues-paying union members work in K-12 school districts. Consequently, the AFT and NEA are highly motivated to protect the jobs and compensation of these members by opposing students using public funds to attend private schools that employ non-union teachers. Since most private schools are faith-based, these unions use the Establishment Clause violation argument as a legal and political weapon despite its ineffectiveness.

The NEA and AFT have far fewer members working in prekindergarten and higher education institutions. Consequently, they are less willing to spend money and political capital opposing students using public funds to attend religious schools in these two sectors.

Education choice opponents such as the ACLU, Americans United, SPLC, and most Democratic Party elected officials, are in the same political tribe as the NEA and AFT, and these two unions provide much of the money and grassroots activists that give this political tribe its power and influence. Therefore, these groups conform with the AFT's and NEA’s legal reasoning for opposing publicly funded education choice programs and will continue to do so until the unions change their positions.

At a mid-1980s NEA convention, the delegates overwhelmingly rejected a resolution supporting magnet schools. As the floor manager for this resolution, I remember this defeat well. Opponents claimed magnet schools undermine neighborhood public schools and correctly argued that magnet schools are a manifestation of Milton Friedman’s initial school voucher proposal. A few years later, after thousands of NEA members began working in magnet schools, the union reversed its position and embraced magnet schools.

Today the NEA and AFT’s tribal partners all support magnet schools despite their school voucher lineage suggesting tribal loyalty is stronger than ideological consistency, and tribes will rationalize changing core positions to enhance their economic and political strength.

In Florida, teachers unions are slowly bleeding to death as thousands of unionized teachers leave to teach in a rapidly expanding array of new, non-unionized education settings such as homeschool co-ops, hybrid schools, and microschools. To survive, Florida teachers unions need to begin serving these teachers, including those working for religious organizations.

For more than  40 years, I have argued that teachers need to replace their old-school industrial unionism with a model that can serve teachers in diverse and decentralized settings. If they do not evolve, they will not survive. Nor will some of their tribal colleagues.

Editor’s note: Our friend, John E.Coons, has been a regular contributor over the years to Step Up For Students policy blogs. Shortly after the 2021 release of his latest book, “School Choice and Human Good,” he was featured in a podcastED interview hosted by Doug Tuthill, chief vision officer and past president of Step Up For Students.

Today is Jack Coons’ 95^th birthday. Jack is a legend in the modern education choice movement. Along with former student and longtime colleague at the University of California Berkley Law School, the late Steve Sugarman, Jack wrote two books, "Private Wealth and Public Education" (1970) and "Education by Choice: The Case for Family Control" (1978). These works inform and inspire our efforts to improve public education by empowering families to access the best learning options for their children.

Jack is a devoted Catholic, a passionate advocate for underprivileged families and their children, and a strong believer in the Catholic concept of subsidiarity, which means decisions should be made at the most local level. Hence, his decades-long advocacy for parental empowerment and education choice, especially for lower-income and minority families.

While I have been honored to do education choice work with Jack for the past 15 years, it is our friendship and his amazing humanity that I value the most. He is the ultimate Renaissance man and speaks intelligently about a wide range of topics.

My favorite Jack Coons story occurred one night while we were having dinner in Berkley with several colleagues. The restaurant was full, and the conversation at our table had wandered onto the theater and various show tunes. Suddenly, Jack burst into song and captivated the entire restaurant for about a minute with his excellent baritone singing voice. The restaurant burst into applause when he finished, and Jack calmly continued with our conversation as if nothing had happened.

He was just living his life. Happy birthday, Jack.