Last week this blog explored some of the ways the expansion of school choice ends up creating injustice and inequality. The National Education Policy Center just published a new report, How School Privatization Opens the Door for Discrimination, in which Julie Mead of the University of Wisconsin and Suzanne Eckes of Indiana University further investigate one particular aspect of the same topic: how privately operated charter schools and private schools receiving publicly funded tuition vouchers fail, often quite legally, to protect the civil rights rights of their students and staff.

Mead and Eckes explain: “Our review of relevant laws indicates that voucher and charter school programs open the door to discrimination because of three phenomena.  First, federal law defines discrimination differently in public and private spaces. Second, state legislatures have largely ignored the issue of non-discrimination while constructing voucher laws and have created charter laws that fail to comprehensively address non-discrimination. And third, because private and charter schools have been given authority to determine what programs to offer, they have the ability to attract some populations while excluding others.”

The new report briefly summarizes the history of attempts to ensure that public schools protect the rights of all students: “Whether and to what degree schools should be available to all children without regard to race, national origin, religion, immigration status, first language, sex, sexual orientation, gender identity, and disability has a long litigious history.  While it is routine now to observe that public schools must enroll all students, that understanding evolved over time beginning with litigation in the 1950s.  As illustrated by the decisions in Brown v. the Board of Education, Lau v. Nichols, Plyler v. Doe, and Mills v. the Board of Education of the District of Columbia, it took many brave plaintiffs and unflinching jurists to reach the conclusion that the term ‘public’ excludes no one and that equal educational opportunity defines our collective obligation to our nation’s children.  Congress reinforced those rulings by enacting a series of federal laws to emphasize that discrimination has no place in public education… Despite such hard fought judicial and legislative battles, public schools still struggle to realize that aspirational ideal.  Persistent achievement gaps, funding disparities, over-representation of students of color in special education, under-representation of students or color in advanced placement and honors programs, and the continued overuse of suspension and expulsion all suggest that public schools and the state and local officials who operate them have much work to do before equal educational opportunity is achieved.”  But, as regards public schools, laws on the books at the federal level offer plaintiffs and their allies a path to seek equal treatment through the courts.

However: “As states have created new forms of publicly funded educational options in the form of voucher programs and charter schools, issues of discrimination have surfaced in these programs as well.  In fact, the first instances of publicly funded school choice were expressly designed to discriminate by closing public schools and providing tax-supported vouchers to private schools that enrolled only white children… The reality is that educational privatization and discrimination have always been entwined.”

The report provides examples of the many ways federal law protects the rights of students in public schools but applies differently in voucher and charter schools—including the Supreme Court’s permission of the use of public vouchers in religious schools that openly promote the faith traditions of the schools’ operators, despite that the First Amendment precludes such a violation of religious liberty. The Court in this case ruled that the vouchers are awarded not directly to the school but instead to the parents, who then choose a school.  Mead and Eckes explore the different application in private and charter schools of the federal Civil Rights Act and the Equal Educational Opportunities Act and describe the many ways charter schools and private schools receiving vouchers skirt federal requirements mandating the provision of appropriate services for students with disabilities. Finally, private religious schools accepting vouchers have been made exempt from compliance with laws to protect LGBT students and staff.

The researchers describe conflicting court decisions across several states defining charter schools. Some of these decisions define charter schools as public (due to their funding stream) while other states call them private contractors.  For example, an Arizona court found that a charter school operates as a private actor: “(T)he Ninth Circuit found that while  a private entity might be considered a state actor for some purposes, it is still possible to function as a private actor in other ways.  In other words. the constitutional protection of due process was unavailable to this public charter school teacher because a private company—not a governmental unit—employed him.  Likewise, a California state appellate court reasoned that charter schools are exempt from many laws that govern school districts.”

Neither have states been vigilant about forcing charter schools—in their operation and programming—to fulfill the promises they advertise about serving the needs of all groups of students:  “(T)he majority of federal requirements (at least, those pertaining to students) do apply to charter schools.  And yet, research frequently documents that charter schools enroll more homogeneous populations and tend to have fewer children with special needs.  Why?  One reason is that while charter school laws may include non-discrimination declarations, they may not include any requirement for authorizers to examine schools’ policies and practices around recruitment, enrollment, and expulsion, nor to review student attrition data.”  And, “(P)rivate and charter schools have the authority to determine their educational programs…. For example, if private schools do not have to—and do not—provide special programming for children learning English, it would be no surprise that few English language learners apply or enroll there. The same is true for children with disabilities.”

Finally, federal laws need updating to incorporate protections in an era when school privatization has expanded: “The federal laws that bind public schools were developed when charter and voucher programs did not exist. It seems apparent that Congress must review those provisions so that they better reflect the ways states now use public dollars to support charter and voucher schools… State legislators also need to examine their charter and voucher school laws to ensure they have taken adequate steps to address non-discrimination. While these laws may have been developed as an experiment with educational deregulation, we can ill afford to experiment with equity and access in programs funded by public dollars.”

In his new book on education finance, Bruce Baker comments on our society’s mistake about school choice: the belief that expanding publicly funded school choice will result in justice for poor children:  “Liberty and equality are desirable policy outcomes. Thus, it would be convenient if policies simultaneously advanced both.  But it’s never that simple.  A large body of literature on political theory explains that liberty and equality are preferences that most often operate in tension with one another. While not mutually exclusive, they are certainly not one and the same. Preferences for and expansion of liberties often lead to greater inequality and division among members of society, whereas preferences for equality moderate those divisions… Systems of choice and competition rely on differentiation, inequality, and both winners and losers.” (p. 28)

Julie Mead and Suzanne Eckes’ new report demonstrates the many ways charter schools and private schools receiving public tuition vouchers are unequal specifically because of their failure to protect by law each student’s right to equal access, equal opportunity, and the provision of programming appropriate to the child’s needs.