23 SES 07 D, School Choice
Objectives and Research Questions
While several court rulings have recognized parental rights over education to varying degrees (Prince v. Massachusetts, 1944; Wisconsin v. Yoder, 1972), the emergence of a common public school agenda has led to an establishment of barriers limiting opportunities for parents to exercise control over the upbringing of their children via school choice initiatives (Schube, 2010). Parental rights and the exercise of choice are further complicated and restricted for parents of students with disabilities.
The desire to exercise parental control and choice is often driven by concerns about marked differences between personal beliefs and school curricular choices (Townsend, 2016), as well as the desire to raise children in accordance with family values and traditions (Taylor, 2015). Conflicts over curriculum have led to litigation by parents seeking relief from school board imposed instruction on topics ranging from homosexuality, transgender issues, non-traditional family depictions, and human sexuality in general (Schube, 2010). Although parental exercise of choice with respect to their children’s educational, moral, and religious upbringing has been at the core of many legal disputes between parents and school districts, other factors such as ideological beliefs (Levin, 1999), child-benefit theories (Bloom, 2003), and special educational needs also influence parental choice motives (Forest Grove Sch. Dist. v. T. A., 2009).
This paper is focused primarily on law and policy developments to address these conflicts between legitimate state educational interests and parental liberty and religious rights. The author posits two research objectives as follows: 1) determine whether the traditional legal discourse used by the courts recognizes parental liberty and religious freedom rights and 2) explore whether the choice reform agenda aligns with child benefit theory.
The essential role and influence of education on a child’s development, according to Locke, establishes the importance of maintaining parental control over the child’s educational experience (Tarcov, 1999). Through clarification about the unique roles of parents as leaders of the family, churches as guardians of religion, and government as protectors of civil society, Locke describes the boundaries and expectations regarding these three distinctive societies (Tuckness, 2010). Locke asserts that the parents, as founders of the family, are uniquely responsible for the care and education of their children.
As revealed in Locke’s essays, there exists an impending tension between parental interests over controlling their children’s education and the goal of government to promote education for the good of society (Gutmann, 1987). While affirmation of these concurrent rights is enshrined in the United States Constitution, efforts to balance the potentially conflicting rights emerge in the courts where the constitutional rights are interpreted with deference to the varying contexts in which such disputes arise (Wisconsin v. Yoder, 1972). Despite assertions that there is not a specified parental right to control the educational upbringing of children, a series of judicial affirmations regarding parents’ rights to select homeschooling as well as private school enrollment in fulfillment of compulsory attendance laws suggests that courts recognize parental rights to choose from among a continuum of options when determining their children’s educational settings (Olsen, 2009).
Methods Given the impact of court rulings on the choice public policy debate, this paper proposes a careful examination of court cases using Kahn’s (1999) cultural study of law approach to answer the research questions. Kahn’s (1999) cultural study of law proposed the examination of law from a theoretical and critical perspective. Kahn challenged the elitist domination over legal scholarship and proposed to study “the way in which law simultaneously embodies the interests of particular groups and shapes those interests” (p. 162). Kahn proposed the cultural study of law as a form of legal study that describes both practices and beliefs about the rule of law. In essence, the law is unveiled and observed as a powerful source of culture that informs “our conception of the way law lives in and through our identities, interpretations, and imaginings” (Sarat & Simon, 2001, p. 21). Through Kahn’s cultural study lens, this study examines court cases and legislation related to the parental exercise of religious freedom and educational choice, particularly for their students with disabilities. A cultural study of law was adopted because this approach was consistent with the focus of this paper on determining whether the traditional legal discourse used by the courts consistently recognized parental liberty and religious freedom rights. The cultural study of law is not contrary to the precedential role of judicial decisions, but instead suggests that in order to capture more fully the shifting landscape of American society, it is necessary to extend the inquiry to symbolic representations of the rule of law in present discourse and popular culture. In addition, the cultural study perspective suggests that legal discourse should be contextualized and interpreted according to the competing and individual interests of those affected by the judicial rulings. For purposes of this paper, the court cases and state legislative initiatives were identified and included in the review if they related to parental control over education, choice initiatives, and disability rights.
Conclusions School choice reform efforts to influence policy adoption reflect deliberate attempts by parents to exercise control over educational decisions for their children by challenging established educational norms and asserting their rights to circumvent the monopoly of public schools (Chubb & Moe, 1999; Viteritti, 1998). While some have argued that past choice initiatives were motivated by racial animus (Gooden, Jabbar, & Torres, 2016), the counter argument for choice is premised on ideological beliefs about values, liberty, and freedom (Friedman, 1962). In fact, parents’ desires to avoid influences over their children that are inconsistent with their family values and beliefs are not recent developments. Rather, parents have previously sought to advance their religious interests and parental control over education in the courts (Wisconsin v. Yoder). Educational policy initiatives should be guided by applicable legislation and judicial rulings, but should also reflect the cultural norms and beliefs of parents who are directly impacted by legal developments and choice policy reform efforts. This article advocates for a reform agenda that aligns with the child benefit theory, because such efforts have the potential to create improved educational possibilities for students. Furthermore, with this trend, observers note that the distinction between public and private sectors must continue to be blurred (Garnett, 2017). The changing political landscape is likely to facilitate renewed efforts to promote education reform agendas that include an emphasis on providing an increased number of choice options for parents of students with disabilities. The debate over parental rights is no longer narrowly focused on choice. Instead, parental choice should expand to incorporate a continuum of educational opportunities, especially for parents of students with disabilities, to secure education that is both high quality and consistent with parental values and beliefs (Bloom, 2003).
References Adamo Usman, E. (2014). Reality Over Ideology: A Practical View of Special Needs Voucher Programs, 42 CAP. U. L. REV. 53 (2014). Bloom, I. (2003). New Parental Rights Challenge to School Control: Has the Supreme Court Mandated School Choice? 32 J.L. & EDUC., 139. Chubb, J., & Moe, T. (1990). Politics, Markets, and America’s Schools. Forest Grove Sch. Dist. v. T. A., 557 U.S. 230 (2009). Friedman, M. (1962). The role of government in education. In M. Friedman (ed.) Capitalism and Freedom. Chicago, Ill: University of Chicago Press. Garnett, N. S. (2017). Sector Agnosticism and the Coming Transformation of Education Law, 70 VAND. L. REV. 1. Gooden, M. A., Jabbar, H., & Mario S. Torres, Jr., M. S. (2016). Race and School Vouchers: Legal, Historical, and Political Contexts, 91 PEABODY J. EDUC. 522. Gutmann, A. (1987). Democratic Education. Princeton, NJ: Princeton University Press. Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985). Levin, H. M. (1999).The Public-Private Nexus in Education, 43 THE AM. BEHAV. SCI. 124. Olsen, C. (2009). Constitutionality of Home Education: How the Supreme Court and American History Endorse Parental Choice, 2 BYU EDUC. & L.J. 399. Prince v. Massachusetts, 321 U.S. 158 (1944). Schube, C. (2010). Public Schools are Replacing Parents: The Erosion of the Parental Right to Control the Educational and Moral Upbringing of Children, 12 T.M. COOLEY J. PRAC. & CLINICAL L. 121. Taylor, R. E. (2015). Responsibility for the Soul of the Child: The Role of the State and Parents in Determining Religious Upbringing and Education, 29 INT’L J. L., POL’Y & THE FAM. 15. Tarcov, N. (1999). Locke’s Education for Liberty 3. Townsend, K. L. (2016). Education and the Constitution: Three Threats to Public Schools and the Theories That Inspire Them, 85 MISS. L.J. 327 (2016). Tuckness, A. (2010). Locke on Education and the Rights of Parents, 36 OXFORD REV. EDUC. 627. Viteritti, J. P. (1998). Blaine's Wake: School Choice, The First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL’Y 657. Wisconsin v. Yoder, 406 U.S. 205 (1972).
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