School Choice: Constitutionality and Possibility in Georgia

• Citation: Vol. 24 No. 2
• Publication year: 2010

Georgia State University Law Review

Volume 24 , ,

Article 5

Issue 2 Winter 2007

3-21-2012

School Choice: Constitutionality and Possibility in Georgia

Patrick H. Ouzts

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Recommended Citation

Ouzts, Patrick H. (2007) "School Choice: Constitutionality and Possibility in Georgia," Georgia State University Law Review: Vol. 24: Iss. 2, Article 5.

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SCHOOL CHOICE: CONSTITUTIONALITY AND POSSIBILITY IN GEORGIA

"Upon the subject of education, not presuming to dictate any plan or system respecting it, I can only say that I view it as the most important subject which we as a people can be engaged in."¹ —Abraham Lincoln

Introduction

On September 13, 2006, Fayette County officials announced the arrest of two women on felony charges, punishable by five years in prison.² Their crime—falsifying school enrollment forms in order to get their children out of Clayton County schools and into Fayette County schools.³ Other Georgia parents have been caught fraudulently using a P.O. Box at Mail Boxes Etc. in the Lenox Marketplace shopping center in Buckhead in an attempt to get their children into Sarah Smith Elementary School, which consistently ranks as one of the best in Georgia.⁴ In fact, the school thinks almost 10% of its students illegally live out of its district.⁵ With such desperate parents, Georgia legislators have followed a growing movement to provide publicly-funded school choice.⁶ However, reorganizing 100 years of educational service structured by residency has proven difficult—both politically and legally.⁷

1. abraham lincoln, Address to the People of Sangamon County (Mar. 9, 1832), in complete Works of Abraham Lincoln 7 (John G. Nicolay & John Hay, eds., 1905).

2. Bridget Gutierrez, Fayette Goes After Ineligible Students: 2 Adults Accused of Residency Fraud, Atlanta J.-Const., Sept. 14,2006, at 3B.

3. Id.

4. Paul Donsky, Nobody's Home; Families Using Bogus Addresses Crowd Legitimate Kids Out of One of Atlanta's Top Public Schools, atlanta J.-const., Mar. 13, 2003, at 1A.

5. Id.

6. See generally Williams v. State, 627 S.E.2d 891, 892 (Ga. App. 2006) (rejecting desperate parents' demand for tuition vouchers); Eric Wearne, School Choice Promotes Education Excellence, Georgia Public Policy Foundation, July 8, 2005, http://www.gppf.org/article.asp?RT=5&p=pub/Education/Choice/educhoices050708.htm (discussing school choice as a benefit for Georgia students).

7. See Clint bolick, Voucher Wars: Waging the Legal Battle Over School Choice 1 (2003).

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This Note examines the interplay between a publicly-funded school choice program in Georgia and controlling constitutional obligations and provides guidance for the inevitable expansion of

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school choice in Georgia. Part I of this Note serves as a brief overview of school choice.⁹ Part II addresses Georgia's constitutional guarantee to provide adequate public education.¹⁰ Part III examines constitutional issues dealing with the inclusion of sectarian schools in a choice program, and Part IV analyzes the constitutionality of excluding sectarian schools.¹¹

I. School Choice in a Nutshell

A. What is School Choice?

School choice programs, once known as vouchers, are government initiatives that allow "individual students and their parents to determine which school the student will attend ... ."¹² School choice programs allocate "a specific sum of money that can be used for part or full payment for the student to attend that school" instead of enrollment restricted to residency.¹³

In 1955, Milton Friedman, a free-market economist, theorized a voucher system for public education.¹⁴ He proposed that education should not be the government's monopoly; however, a completely free market would be risky because education is a public commodity to which wealthy and poor alike should have access.¹⁵ Thus, the government would provide parents with funds to offset the cost of

8. In 2007, the Georgia General Assembly passed Senate Bill 10, the "Georgia Special Needs Scholarship Act," to provide for vouchers for special needs students. S. 10, 149th Gen. Assem., Reg. Sess. (Ga. 2007).

9. See infra Part I.

10. See infra Part II.

11. See infra Parts DI-IV.

12. Ronna Greff Schneider, Education Law: first Amendment, Due Process, and Discrimination Litigation, 1 Educ. Law § 1:30 (2006).

13. Id.

14. See generally Milton Friedman, The Role of Government in Education, economics and the Public Interest 123-44 (Robert A. Solo ed., 1955).

15. See id.

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education.¹⁶ This system would force schools to compete for student enrollment, causing schools to either cater to students' needs and excel or to lose enrollment and the corresponding funding until forced out of business.¹⁷ In short, vouchers through competition and choice would create more successful and innovative schools than a bureaucratic government monopoly could.¹⁸

For example, the American Legislative Exchange Council, a nonpartisan collaboration for creating legislation based on "belief in limited government, free markets, federalism, and individual liberty," has drafted a model school choice plan.¹⁹ This model school choice plan entails four elements: who receives scholarships, where scholarships can be used, what is required of schools receiving students using scholarships, and how scholarships are distributed.²⁰ Scholarships may be prioritized for low-income families, allotting the maximum amount of funding for students below the poverty line and graduating payments as families have more money.²¹ Other programs have based eligibility on the current public school's failure to make Adequate Yearly Progress under No Child Left Behind, especially since that statute authorizes school choice. Students may use the money at adjacent public schools outside of the resident's district or participating private schools;²³ parents often choose sectarian private schools. Schools receiving the funds must abide by antidiscrimination laws, demonstrate certain educational achievements (including student-mastery, attendance, and parental involvement),

16. See id.

17. See id.

18. See id.

19. Am. Legislative Exch. Council, History http://www.alec.org/AM/Template.cfrn? Section=Histoiy&Template=/CM/HTMLDisplay.cfm&ContentID=3786 (last visited June 9,2008).

20. See Am. Legislative Exch. Council, Parental Choice Scholarship Program act § 3, http://www.allianceforechrolchoice.org/_DCCs/Pare (last visited Dec. 16,2007).

21. Id. §3.

22. U.S. Department of Education, School Choice in NCLB, http://www.ed.gov/ admins/comm/choice/choice03/edlite-index.html (last visited June 9,2008).

23. See Am. Legislative Exch. Council, Parental Choice Scholarship Program act § 2, http://www.allianceforechrolchoice.OTg/_LXX!!s/Pa^ (last visited Dec. 16,2007).

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and exhibit fiscal soundness.²⁴ Finally, if sectarian schools enroll students using choice scholarships, the funds must be distributed to the parents, who endorse the check to the sectarian school, in order to comply with the Establishment Clause.

In 1989, Wisconsin passed the first publicly-funded school choice legislation.²⁶ In Milwaukee, inner-city parents banded behind Polly Williams, Democratic State Legislator and former campaign director for Jesse Jackson.²⁷ Polly Williams "rejected the idea that inner-city kids should be bused to the suburbs in search of better schools." Williams believed that if the government was unable to provide decent schools within the city it should allow private institutes to do

™ 29 SO.

Since Milwaukee passed its legislation, other publicly-funded school choice programs have been passed in Maine, Vermont, Ohio, Florida, Colorado, Utah, and Washington, D.C.³⁰

B. The Politics of School Choice

1. The Players

Grass-root movements started by parents have primarily driven the movement for publicly-funded school choice, especially urban minority parents.³¹ They are joined by a few school choice interest

24. Id. §4.

25. See Zelman v. Simmons-Harris, 536 U.S. 639, 646-62 (2002).

26. See Wis. Stat. § 119.23 (2008); Inst, for Justice, National School Choice Timeline, http://ij.org/pdf_folder/school_choice/enrollment_timeline.pdf (last visited Nov. 1,2007).

27. Terry M. Moe, Schools, Vouchers, and the American Public 33-35 (2001).

28. Wat33.

29. Id.

30. Colo. Rev. Stat. §§ 22-56-101 to -110 (2006) (repealed); D.C. Code §§ 38-1851.01 to .11 (2006); Fla. Stat. § 1002.38 (2006); Me. Rev. Stat. Ann. tit. 20, §§ 2951, 5203-5204 (2005); Ohio Rev. Code. Ann. §§ 3313.974-.979 (2006); Utah Code Ann. § 53A-la-701 to 709 (2007); Vr. Stat. Ann. tit. 16, § 821-827 (2006).

31. See Black Alliance for Educational Options, Parental Choice Options, http://www.baeo.org/programs?program_id=5 (last visited Dec. 16,2007); Hispanic Council for Reform and Educational Options, What is School Choice?, http://www.hcreo.org/section/what_is_school_choice (last visited Dec. 16,2007).

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groups. Some larger social justice organizations have also fought for choice.³³ Private religious schools established prior to the allowance of school choice promote choice because it increases enrollment.³⁴ Politically, the Libertarian Party supports school choice as policy, and Republicans, when appealing to a broader constituency also support choice.

Teacher unions form the first line of opposition to choice.³⁶ Joining the unions in opposing publicly-funded school choice are...