School Choice and States' Duty to Support "Public" Schools

The education clauses of state constitutions require states to support schools that not only educate children adequately and equitably, but that are "public" or "common." This Article argues that state-supported school choice can be consistent with these latter requirements. Individual choices, about where to live and whether to educate children privately, have long shaped traditional "public" schooling arrangements. The more direct role choice plays in school voucher and charter programs is also consistent with the requirement that schools be "public." Such prograrns must ensure, however, that parents' choices among schools are "genuine and independent." This criterion, developed by the U.S. Supreme Court to test the constitutionality of school vouchers under the Federal Establishment Clause, also guarantees publicness. It does so by requiring that parents' options in the educational marketplace be determined by market demand, minimally biased by government preferences.