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.”

 

 

 

 

 

 

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.

 

 

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.

Editor's note: This post originally appeared on the Fordham Institute's Choice Words blog. It's one of many pieces written in response to Fordham's release of a "school choice toolkit" for lawmakers that called for more regulatory accountability measures for "voucher schools."

Policy-making usually involves trade-offs, finding the right balance between competing objectives and even principles. This is especially true in education, where so much is at stake, both for vulnerable children and for the health of society.

One of the principles that should guide educational policy is that "parents have a prior right to choose the kind of education that shall be given to their children" (article 26, 3, Universal Declaration of Human Rights, adopted in San Francisco in 1948). Officially, at least, this right is acknowledged by almost every nation, and in many of their constitutions; it has been settled law in the United States since the Supreme Court’s 1925 ruling in Pierce v. Society of Sisters (268 U.S. 510).

Americans agree, as Terry Moe showed in Schools, Vouchers, and the American Public (Brookings Institution, 2000). This is especially true of parents for whom public school provision is of inadequate quality. “Among public [school] parents, vouchers are supported by 73 percent of those with family incomes below $20,000 a year, compared to 57 percent of those with incomes above $60,000.   . . . 75 percent of black parents and 71 percent of Hispanic parents, compared to 63 percent of white parents. . . . 72 percent of parents in the bottom tier of districts favor vouchers, while 59 percent of those in the top tier do” (212).

Moe also found, however, that “enthusiasm for regulation is remarkably uniform and cuts across groups and classes – including private [school] parents, who appear quite willing to see the autonomy of their own schools compromised in the interests of public accountability” (299). This expectation of government oversight is also well-established in international law and practice, and specified in the Pierce decision.

On the other hand, if the regulatory hand of government is too heavy, the right of choice becomes meaningless: what’s to choose among schools forced to be alike? (more…)

An expansive power of parents over their own children has been recognized by the U.S. Supreme Court since the 1926 decision in Pierce v. Society of Sisters. There, Oregon had attempted to make education in State schools compulsory; the court unanimously reaffirmed the independence and supremacy of the parent. This was guaranteed, it said, in the “due process” clause of the 14^th Amendment. This rather mystical phrase - and similar potent, if obscure, clauses - have since been employed repeatedly to reaffirm the broad parental sovereignty. Even loving grandparents need parental permission to visit little Susie.

So parental authority has, in Pierce and its progeny, a certain protected status. Would it, nonetheless, be prudent and helpful - assuming the argument is plausible - for champions of parental authority to assert its reality as a source of law that exists quite independent of the Constitution, but is recognized and protected by it in the Bill of Rights?

Perhaps so. I will argue the institution of parenthood might be considerably more secure under the 10^th Amendment than under the ever malleable “due process.” The court could be grateful for the relative clarity - and judicial restraint - that under the 10^th would mark the boundary between the power of mother and the rights of Susie. Equally important, the child herself could claim this precious parental authority as a right of her own.

The primary example of this possibility could emerge in the effort to make parental school choice a reality for all families. The present economic compulsion experienced by modest and low-income parents to accept the free schools of The State as their mentor could well appear a violation of the child’s own right as well as an unjustified intrusion upon the parental authority which today, in practice, is reserved to our higher-income families. And sheer human dignity could come as a bonus for all. (more…)

The Orlando Sentinel recently published a blog entry about a new website that opposes students using publicly-funded vouchers to attend private schools that teach creationism. The site asserts, “Teaching creationism with public money is unconstitutional. It violates the First Amendment of the U.S. Constitution which lays out a clear separation of church and state.”

I’m fine with citizens opposing the teaching of creationism. I would not send my child to a school that taught creationism in lieu of evolution, but the assertion that it’s unconstitutional is false.

In the 1925 Pierce v. Society of Sisters decision, the U.S. Supreme Court ruled parents are responsible for determining how and what their children are taught. And in the 2002 Zelman v. Simmons-Harris decision, the court ruled parents may use public money to pay for tuition at faith-based schools provided their choice is genuinely independent, and the funds go first to the parents and then to the school.

Florida’s school voucher programs all adhere to the Zelman requirement that funds go first to the parent and then the school, which is why using publicly-funded vouchers to attend faith-based schools is an exercise of the First Amendment’s freedom of religion clause, and not a violation of the Establishment Clause. (By the way, the term “separation of church and state” does not appear in the U.S. Constitution. That phrase was used by President Thomas Jefferson in a January 1, 1802 letter he wrote to the Danbury Baptist Association of Connecticut, reassuring them that he opposed the government interfering with their religious practices.)

The Sentinel wrote that some state officials think tax credit scholarships are more constitutional than vouchers because tax credit funds never touch the state treasury, but, again, the key to the Zelman decision is the path the funds travel to arrive at a faith-based school. Once public funds are given to the parents, they become less public and more private, which is why their expenditure is an exercise of religious freedom and not government-supported religion. (more…)

Faith-based schools will be more effective in expanding school choice – and in getting Americans to see their value - if they work together across traditional lines, suggests the chairman of a new national commission that aims to foster that kind of coalition.

“We want to encourage the leaders of faith-based schools to become more engaged, to make sure that together, across lines, across sectarian and religious lines, they join forces to advocate for the families and for their institutions,” said Michael Guerra, who chairs the Commission on Faith-based Schools, in the podcast below.

The 14-member commission, which met for the first time last month, was launched by the American Center for School Choice. Guerra is a founding director of the center (which co-hosts redefinED) and past president of the National Catholic Educational Association.

It’s no coincidence the commission is emerging now, he said. Publicly funded school choice is rising in acceptance and yet, at the same time, there is enormous flux among faith-based schools. Catholic schools, for example, have been dwindling in urban areas where they long anchored neighborhoods and served low-income families. “These are assets too precious to be lost,” Guerra said. (more…)

The Washington Post's Jay Mathews mused last month about the similarities between the education platforms of President Obama and Mitt Romney, but he was also a little too eager to dismiss their differences on school vouchers as irrelevant. The issue of equal access to private schools speaks to the core values of each party, but the topic is particularly important to Democrats who were deeply divided on the issue in the 1970s, and are so again today.

Let’s start with some history. In 1922, the Ku Klux Klan pushed a referendum in Oregon, which the voters passed, making it illegal for children to attend private schools. The Klan thought outlawing private schooling, especially Catholic schools, would help reduce cultural pluralism in the United States. The Society of Sisters of the Holy Names of Jesus and Mary, which ran a Catholic girls school in Oregon, sued, and the law was overturned by the U.S. Supreme Court in 1925 (Pierce v. Society of Sisters).

The Pierce decision is arguably the most important legal ruling in the history of public education because it said the U.S. Constitution gives parents the authority to determine how their children are educated. But the ruling did not require the government to fund public education in a manner that allows all parents to exercise this authority. Enabling low-income parents to attend government schools for free but requiring them to pay to attend private schools prevents most low-income parents from exercising the authority granted them in the Pierce decision.

In the 1960s and 70s, liberal Democrats took the lead in trying to address this problem.  In his 1968 presidential campaign, Hubert Humphrey supported tuition tax credits for parents choosing private schools, as did George McGovern in 1972, but both men lost. In 1978, Senator Daniel Patrick Moynihan, D-NY, and Senator Bob Packwood, R-Oregon, filed a tuition tax credit bill that had 24 Republican and 26 Democratic co-sponsors. But in a payback to the National Education Association for endorsing his candidacy, President Jimmy Carter had the bill killed and had support for tuition tax credits removed from the Democratic Party’s platform when he ran for re-election in 1980. Candidate Ronald Reagan then embraced allowing parents to pay for private schools with public funds in 1980, and the two national parties have formally maintained their contrary positions ever since. (more…)