Introduction to Symposium: Educational Choice: Emerging Legal and Policy Issues

American educators and policymakers generally acknowledge a peaceful, profitable co-existence between public and private education, which lends itself to an overall healthy national educational environment. There are occasions, however, when the nation's private and public educational interests seem at odds. On such occasions, the law acts not only as a moderator of differing interests, but places them in a larger context of constitutional and social values not exclusively linked to educational quality. One such contentious arena of differences, the concept of public money providing vouchers for private schooling, was born in the 1950s as one of the attempts by economist Milton Friedman to apply freeenterprise principles to non-economic institutions. Since then, the voucher concept has evolved, developed, mutated, and grown in strength-from an idea in Friedman's head to its implementation in a variety of forms and places throughout the nation. In so doing, it has met or failed a number of legal challenges in its course. One of the more recent state voucher initiatives gained national attention for its breadth and, some would say, audacity. In February 2007, the Utah State Legislature passed two educational-choice bills, which promised a vouchers-for-private-schools program, nationally unprecedented in its scope. Under the Utah laws as conceived, all current public school students would be entitled to a voucher, the value of which would be graduated according to family income and redeemable at any participating, accredited private school, secular or sectarian. Voucher values would range from $3000 per child for the lowest-income families to $500 per child for those with the highest incomes. Passage of these bills created a furor and debate throughout the state over educational values and priorities. Threats of judicial challenges to the voucher laws were tempered and delayed by the state attorney general's reading that they would likely pass state constitutional muster and by the lieutenant governor's determination in April 2007 that voucher opponents had gathered sufficient signatures on a petition to require a referendum on the question. Meanwhile, educational professionals and reformers from throughout the country sat up and took notice, and, for a time, all eyes were on Utah's school choice initiatives. Observers, scholars, and interested parties raised questions: given the eligibility of religious schools to receive the state vouchers, would such a broad entitlement, linked more to parental and student values than to widespread patterns or prospects of public school failure, survive challenges under the U.S. Constitution? The U.S. Supreme Court, in its landmark 2002 decision, Zelman v. Simmons-Harris,1 allowed a liberal construction of voucher entitlement laws that brought sectarian schools within their embrace. In Zelman, however, unlike the schools in Utah, the Cleveland inner-city schools had been deemed virtual disasters, failing to meet even minimal academic standards for large numbers of students. Assuming, however, that the Utah laws could pass U.S. constitutional tests-and that assumption was widespread-would they, as the attorney general suggested, survive a constitutional challenge in Utah state courts? Some thought not. After all, the Utah Constitution, like those of so many other states, specifically prohibits public school appropriations from directly supporting sectarian institutions.2 Other states with strong voucher movements and similar constitutional provisions (often modeled on the nineteenth century's failed "Blaine Amendment" to the U.S. Constitution), were as interested in how Utah would answer this question as were many Utahans. The question also remained, even if school vouchers made good law, of whether they make good public policy. Given the furor of the debate, not only within the state but-as soon highlighted by the Utah debate-throughout the country, Brigham Young University Law School, its International Center for Law and Religion Studies, and the Brigham Young University McKay School of Education brought together many of the nation's constitutional and education law experts to attempt to give light to the voucher question. …