THE CASE FOR SCHOOL CHOICE GIVEN THE ABSENCE OF

A FUNDAMENTAL RIGHT TO EDUCATION: LEARNING

FROM THE EUROPEAN EXPERIENCE

VICTORIA SAKMAR SZCZECHOWSKI*

I.  INTRODUCTION

There is little doubt that quality education and level of educational attainment
contribute to individual and societal success. For instance, according to the
National Center for Education Statistics, “in 2018, the poverty rate for children
under 18 was highest for those in households where no parent had completed high
school and lowest for those in households where the highest level of education
attained by either parent was a bachelor’s degree or higher, both overall (46 vs.
4 percent) and within all racial/ethnic groups.”1 Despite recognizing the
importance of education, the United States Supreme Court, in San Antonio
Independent School District v. Rodriguez, stated that education “is not among the
rights afforded explicit protection under our Federal Constitution” and failed to
infer and affirm implicit protection of education in the Constitution.2

Contrastingly, Article 14 of the Charter of Fundamental Rights of the European
Union explicitly recognizes a right to education by providing: 

The freedom to found educational establishments with due respect for
democratic principles and the right of parents to ensure the education and
teaching of their children in conformity with their religious,
philosophical, and pedagogical convictions shall be respected, in
accordance with the national laws governing the exercise of such
freedom and right.3

Considering the different legal treatment afforded to education in the United
States and European Union, this Note will compare the explicit right to education
afforded by the European Charter of Fundamental rights with America’s failure
to provide the same.

Looking to a select group of European countries, this Note will also promote
the expansion of school choice programs as a means of acknowledging the
importance of education globally while considering the absence of a
Constitutional right to education in the United States. Rather than argue for
establishing a fundamental right to education, this Note will seek to address
educational disparities within the United States by promoting school choice

* J.D., Indiana University Robert H. McKinney School of Law, Class of 2021; B.A.

Political Science and Spanish, University of Dayton. I would like to thank my family, especially

my sister, Erica, for all of their love and prayers throughout my law school career.

1. U.S. DEP’T OF ED. INST. OF ED. SCIENCES NAT’L CENTER FOR ED. STATS.,

CHARACTERISTICS OF CHILDREN’S FAMILIES 4 (May 2020), https://nces.ed.gov/programs/coe/

indicator/cce [https://perma.cc/GJP8-ZP74].

2. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

3. Charter of Fundamental Rights of the European Union art. 14 (3), 2012 O.J. (C 326) 398.



164 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

programs as a means of improving education and avoiding inappropriately
entangling the courts in complex cases hinging upon a myriad of factors, such as
student outcomes, state funding, and social and demographic concerns. Essential
to this analysis will be how both the United States and Europe treat parental
involvement and recognize a right for parents to dictate the upbringing of their
children. Given the importance of education, school choice programs in the
United States should be expanded to promote quality education and empower
parents and students, especially given the detrimental effect of COVID-19
response measures on student learning. 

As used in this Note, “school choice” broadly refers to the provision of public
funds directly to students who may use the funding at the school of their choice,
including private schools.4 Many students are able to exercise “traditional school
choice,” which refers to a child’s ability to attend a private school or a particular
public school due to their family’s own financial means, whether that be through
funding private school tuition or moving to an area with high-quality public
schools. “School choice programs” refer to the means by which that funding and
ability are provided, including voucher programs, educational savings accounts,
tax credit scholarships, individual tax credits and deductions, and inter-district
transfers—all of which will be explained in greater detail throughout this Note.5

II.  HISTORY AND BACKGROUND

A.  Education in the United States

Education in early America was not an essential component of the country’s
founding. The largely agrarian economy did not demand much in the way of
formal education; “in general, though, schooling was not required in the colonies,
and only about 10% of children, usually just the wealthiest, went to school. . . .”6

It was not until the mid-1800s that the push for compulsory education began in
order to provide education to the broader population and attempt to foster
nationalism and assimilate immigrant children.7 Thus, at the time the United
States Constitution was promulgated, education was neither prioritized nor was
it available to most children, which speaks to why education was not enshrined
as a fundamental Constitutional right. Nonetheless, as the economy evolved and
the need for an educated citizenry became more apparent, states passed

4. What is School Choice?, EDCHOICE, https://www.edchoice.org/school-choice/what-is-

school-choice/ [https://perma.cc/F23H-86SY]. 

5. See Types of School Choice, EDCHOICE, https://www.edchoice.org/school-choice/types-

of-school-choice/ [https://perma.cc/8QXU-CYP6] (providing additional information on each type

of school choice program).

6. UNIVERSITY OF MINNESOTA, A Brief History of Education in the United States, in

INTRODUCTION TO SOCIOLOGY: UNDERSTANDING AND CHANGING THE SOCIAL WORLD (Howard

Community College ed.) (2010) https://pressbooks.howardcc.edu/soci101/chapter/16-1-a-brief-

history-of-education-in-the-united-states/ [https://perma.cc/DAY7-TFFV]. 

7. Id.



2022] THE CASE FOR SCHOOL CHOICE 165

compulsory education laws requiring younger children to attend school at little
to no cost. Today, all fifty states have an established system to provide public
education and a compulsory education law, with most states requiring school
attendance for children ages six to eighteen.8 Children are assigned to a public
school in the school district in which they reside, rendering a family’s area of
residence critical to their child’s education.9 Parents also have the option of
enrolling children in a private school or in homeschool, with specific laws and
school choice programs further enabling or hindering such options varying
depending upon the state. The federal government, or the U.S. Department of
Education, serves to fill in funding gaps within state education systems.10

1. The Lack of a Fundamental Right to Education

The United States Supreme Court has affirmed the importance of education
on several occasions, perhaps most notably in Brown v. Board of Education, the
landmark civil rights decision requiring school desegregation. Holding that racial
segregation in public schools “deprive[s] the minority group of equal educational
opportunities,” the Brown court asserted that:

Today, education is perhaps the most important function of state and
local government. Compulsory school attendance laws and the great
expenditures for education both demonstrate our recognition of the
importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. . . . Such an
opportunity, where the state has undertaken to provide it, is a right which
must be available to all on equal terms.11

Here, the Court affirmed both the importance of education and clarified that
equality in education is required when the State sought to provide education,
implying that the provision of education is a state option to be exercised by the
legislative branch rather than a right guaranteed under the Constitution. 

In its most explicit rejection of a federal Constitutional right to education, the
Supreme Court held in San Antonio Independent School District v. Rodriguez that
education is not a protected right afforded either explicitly or implicitly in the
Constitution. The Court reasoned that although the ability to communicate
effectively is required to exercise First Amendment freedoms and the right to
vote, the courts do not have the power “or the authority to guarantee to the

8. U.S. DEP’T OF ED INST. OF ED. SCIENCES NAT’L CENTER FOR ED. STATS., STATE

EDUCATION REFORMS, Table 5.1 Compulsory School Attendance Laws, Minimum and Maximum

Age Limits for Required Free Education by State: 2017 [https://perma.cc/3W4H-H4NS].

9. The Federal Role in Education, U.S. DEP’T. OF ED., (last modified May 25, 2017),

https://www2.ed.gov/about/overview/fed/role.html [https://perma.cc/3HTM-DF4T].

10. Id.

11. Brown v. Brd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 493 (1954)

(emphasis added).



166 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

citizenry the most effective speech or the most informed electoral choice.”12 The
Court’s position demonstrates that the judiciary is intended to safeguard against
government infringement upon fundamental rights rather than serve as a means
of ensuring that all possess the highest capacity to exercise those rights. Despite
this ruling, the Court left the door open for an argument to be made in especially
egregious cases whereby the State’s failure to educate is so severe as to render
other protected rights such as freedom of speech and the right to vote ineffectual.
The Rodriguez court stated that “even if it were conceded that some identifiable
quantum of education is a constitutionally protected prerequisite to the
meaningful exercise of either [freedom of speech or the right to vote], we have
no indication that the present levels of educational expenditures in Texas provide
an education that falls short.”13 

The Sixth Circuit Court of Appeals latched onto the Supreme Court’s slight
indication of a minimal right to education by asserting the Supreme Court has
never actually decided whether a fundamental right to a basic education exists.14

In Gary B. v. Whitmer, the Sixth Circuit Court of Appeals found that conditions
and student outcomes in five Detroit, Michigan public schools were so deplorable
as to hold that the State violated the students’ fundamental right to access to
literacy.15 The case highlighted that “achievement data reveal that in Plaintiffs’
schools, illiteracy is the norm. The proficiency rates in Plaintiffs’ schools hover
near zero in nearly all subject areas.”16 In fact, “in 2017, only 7% of Detroit
public school eighth graders performed at or above the proficient level in reading,
according to the National Assessment of Educational Progress. The percentage
of Detroit students who performed at or above the NAEP proficient level in 2019
was 6%.”17 Additionally, plaintiffs complained of a lack of usable, grade-level
appropriate textbooks as well as deteriorating school buildings without
appropriate air conditioning or heat.18  Given these conditions and dismal student
outcomes, the Court asserted, “where, as Plaintiffs allege here, a group of
children is relegated to a school system that does not provide even a plausible
chance to attain literacy, we hold that the Constitution provides them with a
remedy.”19

The Court established the right to a fundamental minimum education in
rejecting the plaintiffs’ equal protection and due process claims, noting that the
“Constitution cannot guarantee educational outcomes.”20 Regarding the plaintiffs’

12. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

13. Id. at 36-37. 

14. Gary B. v. Whitmer, 957 F.3d 616 (6th Cir. 2020).

15. Id.

16. Id. at 627. 

17. Corey Williams, Michigan Settles Suit After Landmark Right to Read Ruling, A. P. (May

14, 2020), https://apnews.com/article/94dd6a192aaac9008563c895bd38e387 [https://perma.

cc/N9H3-JLY2].

18. Gary B., 957 F.3d at 626.

19. Id. at 662.

20. Id. at 635.



2022] THE CASE FOR SCHOOL CHOICE 167

Equal Protection claim, the Court held that “while performance outcome data
provides some insight into access to education, the differences in these numbers
are not supported by additional allegations suggesting, for example that
Defendants provided different levels of financial resources to other schools across
the state.”21 Moreover, plaintiffs failed to “identify the actions taken or policies
implemented by Defendants that treated their schools differently from others in
the state and caused the disparities at issue in this case.”22 Thus, the Sixth Circuit
upheld the District Court’s dismissal of plaintiffs’ equal protection claim.23

For plaintiffs’ due process claim, “plaintiffs argue that by detaining them at
‘schools in name only,’ the state has failed to meet this burden [the right to
freedom of movement and freedom from state custody in light of compulsory
education laws], rendering the detention arbitrary and violating their substantive
due process rights.”24 It appears the Court is amenable to this argument, stating,
"it seems beyond debate that confining students to a ‘school’ that provides no
education at all would be an arbitrary detention, prohibited by the common law’s
understanding of due process tracing back to the Magna Carta.”25 However, the
Sixth Circuit upheld the dismissal of this claim because plaintiffs failed to
“provide notice that they were pursuing a claim based on Michigan’s compulsory
attendance requirement and fail[ed] to allege sufficient facts for the Court to
address its plausibility.”26 Additionally, the Supreme Court has recognized that
the state typically has the power to compel school attendance given its weighty
interest in educating the citizenry.27

While it is unclear whether similarly situated plaintiffs could prevail on a due
process claim asserting unconstitutional restriction on the freedom of movement,
these facts illustrate how students attending schools that fail to provide basic
access to education deserve better, regardless of whether the State’s failure to
educate, yet require that students attend school, violates due process
rights.  According to the majority, “compulsory school attendance laws are a
restraint on Plaintiffs’ freedom of movement, and thus implicate the core
protections of the Due Process Clause . . . . [I]f compulsory school attendance is
constitutional, it must be because the relevant state interest outweighs any
deprivation of liberty.”28

This assertion raises the question of what plaintiffs’ remedy would be had
they demonstrated their schools truly were not providing any education and
consequently prevailed on their due process claim. Surely, absolving these pupils
of the obligation to attend school would serve neither their best interest nor the
State's. Given that the State would have to fail to educate so severely in order for

21. Id.

22. Id. at 637.

23. Id.

24. Id. at 638.

25. Id.

26. Id.

27. Id. at 640.

28. Id. at 640.



168 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

plaintiffs to prevail under substantive due process claims, such an unreachable
standard should not be the avenue for plaintiffs to address failures of the public
school system. Rather, students should be afforded the ability to attend their
school of choice. A school choice program could even be utilized as a remedy in
the face of violations of students' due process rights to ensure that students are not
arbitrarily detained by compulsory attendance laws to schools in name only.

Rather than place the defendant's failure to educate within the context of
violating plaintiffs' due process or equal protection rights, the Sixth Circuit held
that “the Constitution provides a fundamental right to a basic minimum
education” largely because literacy is quintessential to participating in
democracy.29 The court asserted that precedent like San Antonio v. Rodriguez
provided “guidance but no answers” as to whether a basic minimum education is
a fundamental right.30 The court thus went through analyzing whether the right
is fundamental using the framework established in Glucksberg v. Washington:
determine whether “the right to a basic minimum education is ‘deeply rooted in
this Nation’s history and tradition’” and determine whether it is “implicit in the
concept of ordered liberty.”31

In conducting this analysis, the court largely relied upon the fact that
education is essential to democracy, that states require compulsory education, and
that the 1787 Northwest Ordinance asserted that “‘schools and the means of
education shall forever be encouraged.’”32 Turning to the second prong of the
Glucksberg test, the Sixth Circuit reasoned that while illiteracy is a significant
societal handicap, literacy itself is not a fundamental right; however, “a basic
minimum education—meaning one that plausibly provides access to literacy—is
fundamental because it is necessary for even the most limited participation in our
country’s democracy.”33

Nonetheless, the court’s determination that a fundamental right to a basic
education does exist and that the State had violated plaintiffs’ right was rendered
moot when, just a few weeks later, the full Sixth Circuit voted to hear the case en
bac, thus vacating the opinion pending a rehearing.34 “A decision to grant
rehearing en banc vacates the previous opinion and judgment of the court, stays
the mandate, and restores the case on the docket as a pending appeal.”35 The
decision to vacate left future plaintiffs significantly in the lurch without an
established right to a basic education to rely on. This decision thereby imprisoned
students who do not have the means to attend better schools to failing schools.
Although a future federal court may look more favorably upon a case alleging
that a fundamental right to a basic education exists, students trapped in “schools
in name only” deserve an appropriate remedy, if not only in the meantime.

29. Id. at 642.

30. Id. at 648.

31. Id. at 649 (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)).

32. Id.

33. Id. at 652.

34. Gary B. v. Whitmer, 958 F.3d 1216 (2020) (Mem.).

35. Id.



2022] THE CASE FOR SCHOOL CHOICE 169

Consistent with prior precedent establishing a fundamental liberty interest in
a parent’s ability to direct their children’s upbringing, school choice programs
serve to empower parents who otherwise could not enroll their child elsewhere.
School choice programs thereby strengthen parental liberty and give students the
opportunity to succeed by attending better schools. Several European countries,
such as Belgium and Denmark, have integrated school choice into the fabric of
their country’s education systems and may serve as models for the United States.

2. Parental Liberty in the United States

The United States has a robust judicial history upholding a parent’s right to
raise their own child. In Meyer v. Nebraska, the Supreme Court affirmed that
parents have the liberty under the Fourteenth Amendment to rear their children
as they see fit.36 Thus, the Court struck down a state law prohibiting foreign
language instruction in schools.37 In Pierce v. Society of Sisters, the Court
specifically held that the “‘liberty of parents and guardians’ includes the right ‘to
direct the upbringing and education of children under their control.’”38

Additionally, in 2000, the Supreme Court held unconstitutional a Washington
state statute that allowed any person to petition for visitation with a child to be
granted if the court found it to be in the child’s best interest because it violated
the plaintiff's "due process right to make decisions concerning the care, custody,
and control of her daughters."39 Most recently, in a case upholding the
constitutionality of Montana’s school choice voucher program, the Supreme
Court extended this liberty interest to parental decisions “to direct ‘the religious
upbringing of their children.’”40

3. School Choice in the United States

The landmark Supreme Court decision, Brown v. Board of Education,
requiring schools to racially integrate, gave rise to legislation, primarily in
southern states, to allow families to choose where their children attended school.41

These laws were an unsavory attempt to thwart desegregation and designed “to
keep black and white families in the same schools they attended before Brown.42

Despite this unfortunate history, school choice has been championed by some
African American activists as a means of achieving equity amongst racial groups.

36. See Meyer v. Nebraska, 262 U.S. 390 (1923). 

37. Id. 

38. Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Pierce v. Society of Sisters, 268 U.S.

510, 534-35 (1925)).

39. Troxel, 530 U.S. at 58.

40. Espinoza v. Montana Dep’t. of Rev., 140 S. Ct. 2246, 2261 (2020) (quoting Wisconsin

v. Yoder, 406 U.S. 205, 213-14 (1972)).

41. Tim Abram, The History of School Choice, EXCELINED: EDUCATION SPACE (Jan. 27,

2020), https://excelined.org/2020/01/27/the-history-of-school-choice/ [https://perma.cc/5JTM-

849M]. See also Brown v. Brd. of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954).

42. Abram, supra note 41. 



170 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

While Milton Friedman in 1955 made an economist’s case for school choice, his
pro-competition argument did not serve as the rationale behind the modern school
choice program.43 Rather, in 1989, Wisconsin Democratic legislator Polly
Williams, an African American female who envisioned school choice as a means
of providing equity in education for children of color by empowering parents,
proposed the Milwaukee Parental Choice Program (MPCP).44 Upon enactment,
this program became the first modern school choice program in U.S. history.45

The MPCP provides educational vouchers to low-income students in Milwaukee,
enabling them to attend their school of choice, whether that be a charter school
or a private school.46 Wisconsin has since expanded school choice statewide
while also maintaining the MCPC.47

Today, 34 states have some form of school choice, with some states even
having multiple school choice programs.48 Vouchers, the provision of public
money directly to students to be used at private schools, are the most common
form of school choice, closely followed by scholarship tax credit programs which
“allow individuals and corporations to allocate a portion of their owed state taxes
to private, nonprofit scholarship-granting organizations that issue scholarships to
K-12 students.”49 Qualifying students may then use the scholarships at any school
approved by the scholarship-granting organization, including private schools and
some out-of-district public schools.50 Alabama, Iowa, Illinois, Indiana, Louisiana,
Minnesota, South Carolina, and Wisconsin have also enacted individual tax
credits, which, depending on the program, cover educational expenses, tuition,
and private school or homeschooling.51 Lastly, five states, beginning with
Arizona in 2011, have enacted education savings accounts, providing families
with public funds (often on a debit card) to use for private school tuition and

43. Milton Friedman, The Role of Government in Education, in ECONOMICS AND THE PUBLIC

INTEREST, reprinted in COLLECTED WORKS OF MILTON FRIEDMAN PROJECT, 123-44. (Robert A

Solo ed., 1955); Abram, supra note 40. 

44. Robin Harris, For Maverick Polly Williams, The Mother of School Choice, The Point Was

Always to Empower Parents and Improve Education for Black Children, THE 74 (Jan. 28, 2020),

https://www.the74million.org/article/for-maverick-polly-williams-the-mother-of-school-choice-the-

poin t-was-always-to-empower-parents-and-improve-education-for-black-ch ildren /

[https://perma.cc/JJK8-GPVX]. 

45. Id.

46. Wisconsin—Milwaukee Parental Choice Program, EDCHOICE, https://www.edchoice.org/

school-choice/programs/wisconsin-milwaukee-parental-choice-program/ [https://perma.cc/XFQ5-

68GC].

47. School Choice in America Dashboard, EDCHOICE (last modified Feb. 4, 2020),

h t tps:/ /www.edchoice.org/school-choice/sch ool-choice-in -america/#filter-table,

[https://perma.cc/938Y-XJTU] [hereinafter School Choice Dashboard]. 

48. Id.

49. Scholarship Tax Credits, NAT’L CONF. OF STATE LEGISLATURES, https://www.ncsl.org/

research/education/school-choice-scholarship-tax-credits [https://perma.cc/254K-WDX4]. 

50. Id.

51. School Choice Dashboard, supra note 47.



2022] THE CASE FOR SCHOOL CHOICE 171

other educational expenses.52

Given that all of the discussed forms of school choice have the potential to
be used by students at religiously affiliated schools, the United States’ separation
of church and state framework has produced legal challenges to school choice
programs, in contrast to many European countries. While more expansive,
accepted, and constitutionally permissible in European countries such as Belgium,
the ability for students to use public funds to attend religious schools is more
narrowly allowed in the United States and often challenged in the courts. In 2020,
the U.S. Supreme Court delivered a favorable ruling for school choice in
Espinoza v. Montana Dep’t. of Rev. The Court deemed unconstitutional a
Montana Department of Revenue rule that did not allow students to use a state-
funded voucher program to attend religiously affiliated schools.53 Primarily at
issue in Espinoza was the State of Montana’s constitutional provision providing
that no state aid could go to religious institutions, referred to as a Blaine
Amendment.54 Now no longer in effect, Art. 10, Sect. 6 of the Montana
Constitution stated: 

The legislature, counties, cities, towns, school districts, and public
corporations shall not make any direct or indirect appropriation or
payment from any public fund or monies, or any grant of lands or other
property for any sectarian purpose or to aid any church, school, academy,
seminary, college, university, or other literary or scientific institution,
controlled in whole or in part by any church, sect, or denomination.55

The Court held that “[a] State need not subsidize private education. But once a
State decides to do so, it cannot, disqualify some private schools solely because
they are religious.”56 Thus, the Free Exercise Clause barred the State’s
“application of the no-aid provision”57 as it “discriminated against religious
schools and the families whose children attend or hope to attend them.”58

Interestingly, the Supreme Court noted that “in the founding era and the early
19th Century, governments provided financial support to private schools,
including denominational ones. ‘Far from prohibiting such support, the early state
constitutions and statutes actively encouraged this policy.’”59 It was not until the
1870s when a federal Constitutional amendment seeking to prohibit federal funds
from going to “sectarian” schools failed that States adopted their own similar

52. Types of School Choice: What is an Education Savings Account?, EDCHOICE,

https://www.edchoice.org/school-choice/types-of-school-choice/education-savings-

account/#:~:text=Education%20savings%20accounts%20(ESAs)%20allow,restricted%2C%20b

ut%20multiple%2C%20uses [https://perma.cc/GKD6-QTQN].

53. Espinoza v. Montana Dep’t. of Rev., 140 S. Ct. 2246 (2020).

54. Id.

55. N.M. CONST. art. IV, §7.

56. Espinoza, 140 S. Ct. at 2261 (2020).

57. Id. at 2249.

58. Id. at 2248.

59. Id. at 2258.



172 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

constitutional amendments, known as Blaine Amendments, after the Speaker of
the House who pushed for the no-aid amendment to the U.S. Constitution.60 “The
Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive
hostility to the Catholic Church and to Catholics in general.’”61 Rejecting the
proffering of Blaine Amendments as a bar to school choice, the Court held that
“the no-aid provisions of the 19th century hardly evince a tradition that should
inform our understanding of the Free Exercise Clause.”62 Thus, the Court
indicated that even if states seek to separate church and state “‘more fiercely’ than
the Federal Constitution” using Blaine Amendments, that interest is not
compelling when coupled with infringement of free exercise.63

Although 38 states have no-aid provisions similar to what was seen in
Montana, some states have upheld the constitutionality of their school choice
programs despite them. For instance, the Indiana Supreme Court maneuvered
around the state’s Blaine Amendment by providing that, rather than directly
providing a benefit to religious institutions, the state’s school voucher program
provided a direct benefit to parents and students who used the voucher to provide
an indirect, albeit substantial, benefit to religious schools, thereby not violating
the Indiana Constitution.64 Additionally, Wisconsin’s landmark MPCP also faced
a state constitutional challenge when the program was expanded to allow
vouchers to be used at religious schools.65 The Wisconsin Supreme Court held
that the program did not violate the state constitution’s Blaine Amendment.66 

Given these precedents, school choice programs that provide benefits to
religious schools are often constitutionally permissible and are an acceptable
educational option for states to pursue as they build upon the United States’
history of safeguarding parental liberty. States with Blaine Amendments that
disallow voucher programs because of their potential to be used at religious
schools should consider amending their constitutions to eliminate this barrier to
school choice, especially given the unsavory history of Blaine Amendments.

B. Education in the European Union – School Choice as a Matter of Right

Similar to the liberty enjoyed by U.S. parents, “in all Member States of the
European Union . . . parents individually have either a natural right or even in
some cases a statutory obligation to educate their children.”67 School choice is
also common practice in many European countries, as “parents also have freedom
of choice of the kind of school they desire for their child, whether public or

60. Id.

61. Id. at 2259.

62. Id.

63. Id. at 2260.

64. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013).

65. R. Harris, supra note 44. 

66. Jackson v. Benson, 578 N.W.2d 602, 621 (Wis. 1995). 

67. EURYDICE, THE ROLE OF PARENTS IN THE EDUCATION SYSTEMS OF THE EUROPEAN

UNION 9 (1997) [https://perma.cc/6A78-NV2J].



2022] THE CASE FOR SCHOOL CHOICE 173

private.”68 The same can be said nominally of the ability for parents to choose a
public or a private school in the United States; however, the United States differs
from some European countries by requiring parents to finance their child’s
private-school education. In some European countries, like Denmark, private
schools are funded similarly to public schools, with parents free to enroll their
child in either.69 Additionally, in Belgium, parents are “free to enroll their child
in the publicly funded school of their choice.”70 Furthermore, Sweden and the
United Kingdom publicly fund private school attendance, “subject however to the
school’s having sufficient places for the child to be admitted.”71 

Taking one of the most pro-parental liberty approaches to education,
Belgium’s educational framework consists of schools administered by local
communities as well as “‘free schools’ that can be religiously affiliated and are
“established under private law” yet still supported by the government
financially.72 Most importantly, parents’ right to freedom of choice in terms of a
school for their child is enshrined in the country’s Constitution.73 Article 24 of
Belgium’s Constitution “stipulates that ‘Education is free; all preventative
measures are prohibited; . . . The Community protects parents’ freedom of
choice.’ Parents thus have a free choice of schools. If their request for admission
to a school is refused, they have the right to bring the matter before the courts.”74

Enacted in 2002, the Decree on Equal Educational Opportunities further
safeguards the constitutional right to school choice by providing that a school can
only deny a student’s enrollment request on narrow grounds, including if the
school is at capacity and accepting the child would pose a safety risk, or if “the
student has been excluded permanently for disciplinary reasons.”75 By putting all
schools on an equal playing field in terms of students’ ability to attend, Belgium
maximizes parental liberty. Although not addressing any logistical issues such as
transportation, the foundation of Belgium’s educational system is to afford
families the capacity to decide the best educational option for them, thereby
prioritizing freedom. Ensuring that parents may choose where to send their
children for schooling and providing a judicial remedy if a school denies them
requires schools to compete for students, arguably improving the quality of
education in the country. At 58 percent, Belgium has one of the highest

68. Id.

69. KURT HOULBERG ET AL., COUNTRY BACKGROUND REPORT—DENMARK 58 (2016)

https://www.oecd.org/education/school/10932_OECD%20Country%20Background%20Report

%20Denmark.pdf. 

70. Id.

71. Id.

72. Id. at 21.

73. Id.

74. Id. (internal citation omitted). 

75. DEBORAH NUSCHE ET AL., OECD REVIEWS OF SCHOOL RESOURCES: FLEMISH

COMMUNITY OF BELGIUM 104 (2015), https://www.oecd-ilibrary.org/docserver/9789264247598-7-

en.pdf?expires=1611085810&id=id&accname=guest&checksum=0AF0D93E18FD065AC568A

26327EC2B41, [https://perma.cc/2LMU-VG4L].



174 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

proportions of students in government-funded non-governmental schools.76

Denmark is similar to Belgium in terms of educational choice in the sense
that “parents have the right to free choice of a school” and are “entitled to have
their child enrolled in a school outside the district” in which the child resides so
long as “the school in question consents to enroll the child” and has a vacancy.77

Parents can “appeal to the municipal council if the school they have chosen does
not consent to enroll their child.”78 Likewise, in the United Kingdom, “parents
have the right to express a preference as to which school they would like their
child to attend. If there is space in the school, the child must be admitted, but if
the school is oversubscribed, admission is generally dependent on the individual
school’s published admission criteria.”79 These options became available thanks
to the Education Act of 1980 and the Education Reform Act of 1988. As a result
of the 1980 Education Act, “[f]rom 1982, parents were given the right to ‘express
a preference’ for a school, and the LEA [local education authority] was obliged
to take this preference into account.”80 However, expressing a preference did not
equate to a guarantee to account for the fact that some schools may be more
sought after than others. Thus, 

the act still gave LEAs considerable powers so that they could manage
falling school rolls and plan the overall provision of school places in
their areas. It allowed the benefits of the community as a whole to
override the benefits to individual parents by giving LEAs the right to
refuse parents’ preferences if this would lead to some less-popular
schools having unviable numbers.81

Recognizing that this system propped up less favorable schools at the expense of
students, the 1988 Education Reform Act adopted a school funding scheme
whereby funding correlates to the number of students enrolled, as “popular
schools gain extra funding as they attract more pupils . . . and less popular schools
lose funding as their numbers decline.”82 On the whole, “the major thrust of the
act was designed to increase competition between schools and to encourage
parents to make choices between schools.”83 

76. How Does School Choice Work in Other Countries, EDCHOICE, https://www.edchoice.

org/engage/faqs/how-does-school-choice-work-in-other-countries/#:~:text=In%20Germany%2C%

20the%20Netherlands%2C%20England,schools%20with%20a%20religious%20character.%E2

%80%9D&text=In%20several%20European%20countries%2C%20such,choice%20is%20a%20

constitutional%20right [https://perma.cc/G75Q-RM9W].

77. EURYDICE, THE ROLE OF PARENTS IN THE EDUCATION SYSTEMS OF THE EUROPEAN

UNION 27 (1997) [https://perma.cc/6A78-NV2J]. See also Houlberg et al., supra note 69. 

78. Id.

79. Id. at 97.

80. DAVID PLANK AND GARY SYKES, CHOOSING CHOICE: SCHOOL CHOICE IN INTERNATIONAL

PERSPECTIVE 72 (David N. Plank & Gary Sykes eds., 2003).

81. Id.

82. Id. at 74.

83. Id. at 72.



2022] THE CASE FOR SCHOOL CHOICE 175

Expanding school choice further, the 1993 Education Act allowed religious
schools to apply for state grant funding, contingent upon the school finding “at
least 15% of the funding for buildings and land” on its own and adhering to the
state-school requirements.84 Now, the United Kingdom demonstrates a preference
toward religious private schools versus non-religious private schools, as “almost
no funding is made available for non-governmental non-faith schools.”85 In the
United Kingdom specifically, state schools are financed almost in the same way
as state-provided or municipal schools, but the church has retained considerable
influence on the way these schools are run and continues to be represented on
their boards.”86

One since refuted primary critique of the United Kingdom's 1988 Education
Reform Act was the perceived potential for increasing school choice options to
segregate students by class. Allocating funding to schools based on the number
of pupils and opening the education market so students could attend the school
of their choice, the Education Reform Act was thought to separate students of
similar classes into the same schools.87 Several studies highlighted links between
different social classes and particular schools, as well as evidence that parents
from the middle class would all choose the same schools, while working-class
families would be left to attend less desirable schools.88 Studies conducted in the
early 2000s, however, refuted these hypotheses, finding that the open enrollment
policies enacted in 1988 did not result in segregation by class when analyzing the
percentage of students in a representative sample of schools in England and
Wales receiving free school lunch.89 In fact, “in many areas, levels of between-
school segregation had fallen,” speaking to the capacity for open enrollment
policies to integrate students of lower socioeconomic classes into schools that
they otherwise would be unable to attend.90

Without strict legal parameters separating religion and government, European
educational systems, overall, provide more support to religiously affiliated private
schools than possible in the United States. Some scholars have divided European
countries into categories based on level of support to private schools: “countries
in which non-governmental education is more or less on the same footing as state-
provided education;”91 “countries where faith schools receive a more favorable
treatment than other schools in the non-governmental sector;”92 countries that

84. Id. at 76.

85. Jaap Dronkers & Silvia Avram, What can international comparisons teach us about

school choice and non-governmental schools in Europe? 51 COMPAR. ED. 118, 122 (2014).

86. Id. at 123.

87. See generally Chris Taylor, Choice, Competition, and Segregation in a United Kingdom

Urban Education Market, 115 AM. J. OF ED. 549 (2009).

88. Id. at 557-60. 

89. Id. at 550. 

90. Id.

91. Dronkers & Avram, supra note 85, at 122. (Countries in this category include Denmark,

Finland, Ireland, the Netherlands, Poland, Slovakia, Spain, and Sweden.)

92. Id. (Countries in this category include Austria, Malta, Portugal, and the United Kingdom.)



176 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

provide some support to non-governmental schools but not more support than to
public schools;93 and “countries that fail to make any public funding directly
available to non-governmental” schools.94 

Denmark is one of the countries in which private education is provided for
nearly the same as public education. Private schools in Denmark receive public
funding at the municipal level in the amount of 71 percent of the average
expenditure per student per year in the local school district, or Folkesole, and
municipalities containing private schools are required to bear the transportation
costs for students living “more than 2.5km from the Folkesole in which he/she is
enrolled.95 Although the countries in the final category—Bulgaria, Cyprus,
Greece, and Romania—seem to be the most anti-religion, their policy of not
providing public funds to private schools is borne out of a connection between
public schools and a particular religion, as each country in that category is
Eastern Orthodox. Foundational pillars in some European countries,

Orthodox Churches have tended to be national churches and, as such,
developed a special relationship with the state. Rather than running a
parallel educational network, the Orthodox Church has made its
influence felt in state-provided education through the state. . . . As a
result, no tradition of separate faith schools developed in these
countries.96

Thus, even in the countries with seemingly extremely secular approaches to
education funding, religion is nonetheless a part of state education. 

Overall, education in Europe provides significant deference to parents in
terms of directing their children’s schooling, and faith-based education is
frequently supported by the state, demonstrating a commitment to the
advancement of individual views and preferences and, in some cases, the
importance of religion within the countries’ public institutions. Many European
countries, particularly Belgium, Denmark, and the United Kingdom, seem to
prioritize freedom of educational choice above all else. Rather than subjecting the
principle to intense scrutiny as in the United States, school choice is ingrained
within these countries’ educational systems, enabling families to decide which
school works best for their children rather than entrapping students in schools
assigned by zip code. Significant funding to religious schools is also a central
component of the educational systems of these countries. Given the separation of
church and state approach in the United States, direct funding of religious
organizations is not wholly possible. However, significant headway has been
made in terms of allowing the government to be tied to religious schools in order
to empower families to choose the school that is right for them. 

93. Id. (Countries in this category include Belgium, Estonia, France, Germany, Italy, Latvia,

Lithuania, Luxembourg, and Slovenia.)

94. Id.

95. HOULBERG ET AL., supra note 69.

96. Id.



2022] THE CASE FOR SCHOOL CHOICE 177

III. ANALYSIS

A. An Unfeasible Judicially Managed Right to Education and School Choice
Programs as a Better Alternative

The American public education system is defunct in many areas of the
country, including Detroit, Michigan, as displayed in Gary B. v. Whitmer. Despite
the failure of Detroit public schools to provide its students with minimally
adequate education, there is no legally established fundamental right to education
in the United States. Establishing such a right would entangle the judicial branch
in complex cases without a proven remedy. Thus, a solution outside of the
judicial system is needed to rectify failing public schools and the absence of a
fundamental right to education. School choice programs provide a solution to
low-income students who are trapped by virtue of their zip code in failing public
school systems. The analysis portion of this Note explains why school choice
programs are worthy of pursuing in light of the absence of a fundamental right to
education and details why a judicial remedy is impracticable.

1. Separation of Powers

As a result of the Sixth Circuit’s initial decision in Gary B. v. Whitmer, the
State of Michigan settled with plaintiffs, with the Governor agreeing to ask the
state legislature to appropriate nearly $95 million to Detroit public schools.97

Additionally, the seven specific plaintiffs in the lawsuit received $280,000 to
share and to “be used for a high-quality literacy program or other ways to further
their education.”98 Currently, however, the Michigan Department of Education
reports that per-pupil funding for students attending Detroit Public Schools, five
of which were at issue in Gary B. v. Whitmer, was at $14,744 when looking at
aggregate local, state, and federal funding.99 In comparison, the statewide average
per-pupil funding was only $10,487, indicating that pushing more money into
struggling schools may not be the best remedy in terms of improving student
outcomes.100 At the least, the funding demonstrates that the Gary B. settlement
needs to be properly managed and targeted at student performance in order to
make a significant difference. 

Although public school funding should be safeguarded and spent wisely,
funding without concrete action on behalf of the school district prevents the funds
from tangibly benefitting students. Additionally, the fact that Detroit Public
Schools receive more funding, on average than other Michigan schools, indicates
the complexity of the factors that result in student outcomes for better or worse.

97. Corey Williams, Michigan Settles Suit After Landmark Right to Read Ruling, A.P. (May

14, 2020), https://apnews.com/94dd6a192aaac9008563c895bd38e387 [https://perma.cc/25BV-

YHYR].

98. Id.

99. MICH. DEP’T OF ED., 2018-19 BULLETIN 1014: MICH. PUB. SCHOOL DISTRICTS RANKED

BY SELECTED FINANCIAL DATA 47 (Feb. 2020) [https://perma.cc/MNQ9-VDM2].   

100. Id. at 9. 



178 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

For instance, studies have shown that high poverty in a given area correlates to
poor student outcomes. One such study out of Iowa found that “as the percentage
of students eligible for FRL [free and reduced lunch] goes down, average scores
go up.”101 These varying contributing factors to student performance demonstrate
the impracticality of requiring judges to adjudicate cases that purport to determine
whether the State is the cause of failing to provide students with the right to a
basic education. Courts would need to become experts in weighing the various
contributing factors, including the level of parental involvement, individual
student motivation, socioeconomic factors, quality of teachers, and state funding.
While the adversarial process “works well in resolving discrete legal disputes and
finding the truth in most cases,” it does not work well “in school adequacy cases
where there is no consensus about the answers to complicated empirical and
policy questions about improving education.”102 Attorney Rocco Testani states:

These limitations are exacerbated by the fact that in most cases, all the
players who could plausibly affect school quality and student
outcomes—for example, the state legislatures, local school boards, and
teachers’ unions that influence factors such as the amount and allocation
of resources; the content of what is being taught; the staffing of schools;
and the accountability for poor performance—are not even parties to the
lawsuit.103

Furthermore, providing courts the final say on questions of policy blurs the
line of the court’s intended role as interpreter of the law, as Judge Murphy
discussed in his dissent in Gary B. v. Whitmer, noting that establishing a
fundamental right to education “would entangle courts in policy controversies
well outside their authority ‘to say what the law is.’”104 Further, Judge Murphy
mused that given the reality that state budgets must appropriately fund education
in addition to several other essential state functions, such as healthcare,
establishing a right to education could result in giving “federal judges the power
to direct states to increase their taxes to provide the required education” or cut
spending from other areas to fund education in higher amounts, constituting a
separation of powers issue.105 Questions of policy this substantial, especially as
they relate to state budgets, should be left within the province of state legislatures,
which are directly accountable to the people they represent by virtue of frequent
elections.    Leaving policy questions like those proffered by Judge Murphy to
state legislatures and to Congress ensures that the will of the people is carried out

101. IOWA DEP’T. OF ED., DISTRICT CHARACTERISTICS: WHAT FACTORS IMPACT STUDENT

ACHIEVEMENT? 3 (2007) [https://perma.cc/3TQE-NWVH]. 

102. Rocco E. Testani, A Short-Lived Constitutional Right to Education, ED. NEXT (May 21,

2020), https://www.educationnext.org/short-lived-constitutional-right-to-education-sixth-circuit-

rehear-gary-b-whitmer/ [https://perma.cc/ZRC9-KJT5].

103. Id.

104. Gary B. v. Whitmer, 957 F.3d 616, 670 (6th Cir. 2020).

105. Id.



2022] THE CASE FOR SCHOOL CHOICE 179

rather than replaced by the will of activist judges.106

A judicially managed basic right to a minimum education would not only be
impractical and usurp traditional notions of federalism and separation of powers,
but the constitutional basis of such a right is shaky. Allowing the Due Process
Clause to be construed as providing positive rights, such as an affirmative right
to education or access to literacy, would upset longstanding precedent
recognizing that the Due Process Clause safeguards against government
deprivation of life, liberty, or property, as “this language is ‘phrased in the
negative.’”107 “The text would be a poor choice of words if the clauses’ Framers
meant to compel a state to protect its people’s lives, to promote their liberties, or
to provide them with property[;]”108 rather, “the Due Process Clause is rightly
construed as a limit on the states’ power to intrude on private rights.”109 

Rather than entangle the courts in an inextricable web of student achievement
factors, parents and students should be allowed to recognize when a school is not
meeting their needs and seek schooling elsewhere, whether that be at a private
school or another public school. The State should be decreasing barriers to school
choice to advance socioeconomic equality and level the playing field, allowing
lower-income students to attend the expensive preparatory schools of their well-
off peers who are financially privileged to exercise school choice on their own.

IV. RECOMMENDATION

Although not a panacea for eradicating inequality and poor student outcomes,
school choice programs have the capacity to promote equity amongst those who
can afford to choose the best schools for their children by living in areas with
high-quality schools simply by providing the means to low-income families to do
the same.110 Left without a constitutional remedy and few alternative educational
options, students attending inadequate public schools are essentially doomed to
fail, oftentimes perpetuating racial disparities, as inner-city schools and rural
schools across the board perform worse than the schools of suburbia.111 One study
illustrating such disparities found that “reading and test scores [were] lowest in
urban schools and nearly as low in rural schools.”112 Additionally, students in
urban and rural schools are less likely to have the financial means to move to

106. Judge Murphy asked, “How old may textbooks be before they become constitutionally

outdated? What minimum amount of training must teachers receive? Which HVAC systems must

public schools use? Our judicial commissions give us no special insights into these ‘difficult

questions of educational policy.’” Id. at 663.

107. Id. at 665-66 (internal citation omitted). 

108. Id. at 666.

109. Id.

110. Lisa Barrow et al., School Vouchers: Recent Findings and Unanswered Questions, 32

ECON. PERSPECTIVES, FED. RSRV. BANK OF CHI. 12 (2008) [https://perma.cc/4ZCC-RAQG]. 

111. John R. Logan and Julia Burdick-Will, School Segregation and Disparities in Urban,

Suburban, and Rural Areas, 674 ANN. AM. ACAD. POL. SOC. SCI. 199 (2017). 

112. Id.



180 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

better school districts, as 63 percent of urban students and 58 percent of rural
students were eligible for free or reduced lunch as compared to only 43 percent
of suburban students.113 

Unfortunately, “low-income and minority households are the most likely to
be prevented from making reasonably optimal investments in their children’s
schooling. The ability of these households may be severely constrained by their
budgets or by discrimination.”114 One such investment is enrolling children in
private schools. With public schools being funded by tax dollars, parents who
send their children to private schools doubly pay for their children’s education in
the form of tuition and taxes.115 “Partly as a result, private schools tend to enroll
fewer than 15% of American elementary and secondary students.”116 School
choice programs level the playing field by allowing low-income students to
attend private schools. With the current social climate largely promoting equity
amongst racial groups, school choice serves as a means of accomplishing that
goal by providing equal opportunities for all students, particularly those who
otherwise could not afford it, to attend the school of their choice.

Moreover, evidence shows that school choice programs can, in some
instances, advance student outcomes in addition to serving as an equalizer
amongst privileged and underprivileged groups. The United States Department
of Education evaluated the District of Columbia’s Opportunity Scholarship
Program, which provides vouchers to students, and found that participants in the
program graduated at higher rates in comparison to their peers.117 Moreover,
private researchers found that D.C.’s Opportunity Scholarship Program produced
better student outcomes in reading.118

Additionally, parental satisfaction with their child’s school is high for a
myriad of school choice programs. Looking at 30 studies of parental satisfaction
amongst various school choice programs, including educational savings accounts,
voucher programs, tax-credit scholarships, and privately funded scholarship
programs across 12 states, 29 studies indicated some positive effect of school
choice programs on parental satisfaction.119 For instance, “[p]arents of students
[in D.C.] offered a voucher reported a significantly lower level of perceived

113. Id.

114. Caroline M. Hoxby, What Do America’s ‘Traditional’ Forms of School Choice Teach Us

About School Choice Reforms? 4 ECON. POL’Y REV. 47, 48 (1998).

115. Id.

116. Id.

117. See U.S. DEP’T. OF ED., EVALUATION OF THE D.C. OPPORTUNITY SCHOLARSHIP

PROGRAM, (2010) (finding that “the offer of an OSP scholarship raised students’ probability of

completing high school by 12 percentage points overall.”).  

118. The 123s of School Choice, EDCHOICE (Apr. 15, 2020) https://www.edchoice.org/

research/the-123s-of-school-choice/ [https://perma.cc/C8Y2-XEBY] (citing Patrick J. Wolf, et al.,

School Vouchers and Student Outcomes: Experimental Evidence from Washington, DC, 32 J. OF

POL’Y ANALYSIS AND MGMT. (2013)).

119. The 123s of School Choice, supra note 118.



2022] THE CASE FOR SCHOOL CHOICE 181

school danger than parents of students not offered a voucher.”120 In a study of
Florida’s educational savings account program for students with documented
disabilities, parental satisfaction with their child’s school increased with the
importance the parents placed on religious instruction. This demonstrates that,
although controversial, many families desire a faith-based education for their
children and that a religiously-affiliated school can be a selling point for
parents.121 Overall, “voucher parents report being more satisfied with their current
schooling than do non-voucher parents,” so there is a social welfare argument to
be made for school choice in addition to a student outcome argument.122 With
compulsory education laws in every state, parental satisfaction is an important
factor, as government-mandated participation in any system should be expected
to produce beneficial, worthwhile results. 

Additionally, there is evidence that “increased competitive pressure can
generate some improvements in public schools,”123 demonstrating that even
students who do not exercise school choice and remain in their assigned public
school have the capacity to benefit from school choice programs.124 This rationale
behind school choice can be traced to Milton Friedman, who saw the potential for
public school gains as a result of increased market pressure.125 Although it is
difficult to measure whether the introduction of a school choice program causes
public school improvements, one analysis of Florida’s educational savings
account program, the McKay Scholarship Program for Students with Disabilities,
found “statistically significant increases in the test scores of students with
disabilities who remained in the public system as more private schools entered the
McKay program.”126 These results indicate that when students have more options,

120. Barrow et al., supra note 110, at 11.

121. The 123s of School Choice, supra note 118 (citing David B. Black, School Choice and

Florida’s McKay Scholarship Program for Students with Disabilities: An Analysis of Parental

Satisfaction (Doctoral dissertation), FLA. ATL. UNIV., http://fau.digital.flvc.org/islandora/object/

fau:31570/datastream/OBJ/view/School_choice_and_Florida___s_McKay_scholarship_program_

for_studen ts_ w ith _ disab il i t ies__an_analysis_of_paren tal_sat isfact ion .pdf%0D

[https://perma.cc/32EX-DNRP]).

122. Barrow et al., supra note 110.

123. Id.

124. Caroline Hoxby, School Choice and School Productivity. Could School Choice Be a Tide

that Lifts All Boats?, in THE ECONOMICS OF SCHOOL CHOICE 288 (2003), (finding that the

introduction of charter schools, and thus market competition, in Michigan, Arizona, and Wisconsin

produced statistically significant student achievement gains amongst traditional public schools).

See also David Figlio and Cassandra M. D. Hart, Does Competition Improve Public Schools? ED.

NEXT (last updated Nov. 17, 2010), https://www.educationnext.org/does-competition-improve-

public-schools/ [https://perma.cc/T4NN-2GKZ] (finding that Florida’s tax credit scholarship

program caused public schools which were faced with the threat of losing students to private

schools to improve their test scores).

125. Friedman, supra note 43.

126. Lindsey Burke, The Value of Parental Choice in Education: A Look at the Research, THE

HERITAGE FOUND. (Mar. 18, 2014), https://www.heritage.org/education/report/the-value-parental-



182 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

their public schools of residence seek to perform better in order to retain and
attract students.

School choice also serves as a means of increasing parental involvement and
parental influence over their children’s schools. One study examining the effect
of school choice programs on parental involvement found that participation in
Milwaukee, Wisconsin’s school choice program equated to greater parental
involvement,127 suggesting that when parents are more invested in selecting their
child's school, they will remain involved as the child's education progresses.
Furthermore, increasing choices amongst public schools provide parents with
more input over school resource allocation: 

Any given school district budget, for instance, is allocated more
according to parents’ preferences (than, say, according to the preferences
of school staff or the state department of education) when parents have
more choice among districts. This is true simply because when parents
have more choices, school budgets are more elastic with respect to
parents’ preferences. Therefore, policy is more responsive to those
preferences.128

Thus, school choice ensures that schools are held more accountable by the
families they serve, in addition to being subject to increased market pressure to
excel.

A. Non-Traditional Public-School Choice

In addition to school choice programs such as vouchers, one option for school
choice exists entirely within the public education system—inter-district transfer.
Rather than confine students to the school assigned to them based on their home
address, the option of inter-district transfer allows students to apply at public
schools outside of their school district of residence. These policies have the
potential to break down racial and socioeconomic barriers that have segregated
classes and ethnicities largely between urban and suburban areas. For instance,
98 percent of the students attending Detroit Public Schools are nonwhite.129 By
allowing students trapped in failing schools alternate schooling options, like inter-
district transfer, state policy can effectively advance racial equality. Currently, 44
states allow for some level of inter-district student transfers, as “some states
require their districts to participate in open enrollment . . . while others leave that

choice-education-look-the-research#_ftn4 [https://perma.cc/JLF5-8WNV].

127. See Philip Vassallo, More Than Grades How Choice Boosts Parental Involvement and

Benefits Children, CATO INST. (Oct. 26, 2000), https://www.cato.org/sites/cato.org/files/pubs/pdf/

pa383.pdf [https:// https://perma.cc/WFU9-L8D2]. 

128. Hoxby, supra note 114, at 49.

129. Dismissed: America’s Most Divisive School District Borders, EDBUILD 1 (July 2019),

https://s3.amazonaws.com/edbuild.org/public/projects/dismissed/report/EdBuild+Divisive+Bor

ders+2019.pdf [https://perma.cc/W6AN-QHHH].



2022] THE CASE FOR SCHOOL CHOICE 183

decision to local districts.”130 
In an analysis of Ohio’s voluntary open enrollment policy, which allows over

70,000 students to attend a public school outside of their geographically assigned
district, one report found that “consistent open enrollment is associated with zero
to modestly positive academic gains,” meaning that students who consistently
attended a school outside of their home district had the potential to experience
positive educational outcomes.131 The positive results were even more prevalent
amongst African American consistent enrollees, who, although comprising only
six percent of the students studied, achieved “test score gains of about ten
percentiles” compared to their non-open enrolling peers.132 Unfortunately, despite
these positive results, “urban, minority students—those whom data indicate
benefit the most from open enrollment—have the fewest open enrollment
options” near them, as the below map demonstrates.133 

This system denies the opportunity of thousands of students who are proven
to benefit from open enrollment policies to attend well-regarded schools of the
suburbs. If Ohio mandated the acceptance of non-district resident students—as
has been done in Denmark, Belgium, and the United Kingdom—thus opening up
the ability for families to choose where to attain an education, these barriers

130. Deven Carlson and Stéphane Lavertu, Interdistrict Open Enrollment in Ohio:

Participation and Student Outcomes, THOMAS B. FORDHAM INST. 1 (June 2017), https://

fordhaminstitute.org/sites/default/files/publication/pdfs/FORDHAM-Open-Enrollment-

Report_Online-final_0.pdf [https://perma.cc/R52K-FHNA]. 

131. Id. at 2.

132. Id.

133. Id. at 3.



184 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

would cease to exist, and students would have the capability to transcend their zip
codes even when physically moving into the desired district is not feasible.

Despite the racial segregation that some school district lines and the lack of
open enrollment policies in the suburbs of Ohio create, the United States Supreme
Court in Milliken v. Bradley provided no remedy to a class of plaintiffs in Detroit,
Michigan, who argued that the state’s drawing of school district lines was in
effect, racial segregation contrary to Brown v. Board of Education and violative
of the Equal Protection Clause.134 Stressing the nation’s history of local control
over schools, the Court held that a state’s school district lines could only be
judicially mandated to change if they “were established with purpose of fostering
racial segregation,” even in the face of practical segregation as was the case in the
Detroit Public Schools at issue.135 

Today, the effects of the Milliken decision can be felt in hundreds of school
districts across the United States.136 With the ability to challenge district lines on
Equal Protection grounds significantly diminished, inter-district transfers in the
form of open enrollment policies constitute one concrete way to begin to rectify
often discriminatory boundaries that disadvantage minority students. Although
simply allowing inter-district transfers does not take into account hurdles to
attendance that families may face when seeking to enroll their children in an out-
of-district school, establishing open enrollment as a statewide policy is a
necessary first step. Furthermore, since an inter-district transfer is a school choice
option housed entirely within the public-school system, critics of vouchers and
other programs providing state funding to private schools may be more inclined
to support open public-school enrollment, as it does not produce any separation
of church and state issues and ensures that public dollars remain in public-school
classrooms. 

Overall, although relatively little data exists regarding the effect of inter-
district transfer availability or utilization and student outcomes, the core argument
for these programs is not that they are guaranteed to produce higher student
outcomes, but rather that they afford equity to students who could not afford to
reside in the district whose schools they wish to attend. While not addressing
prior or current policies that result in racial or socioeconomic segregation in the
first place, school choice programs, on the whole, provide the means for
disadvantaged students to challenge the status quo and upend systemic inequality
by rejecting the traditional system.

Overall, providing parents and students with the ability to attend the school
of their choice serves as a viable means of advancing quality education. State
governments should shift their education funding toward providing either the
funding or means (via inter-district transfers) to families to choose their own
educational paths.

134. Milliken v. Bradley, 418 U.S. 717 (1974).

135. Id.

136. See EDBUILD supra note 129, at 5 (noting “there is a $23 billion gap between the

resources of predominantly white and predominantly nonwhite school districts in the United

States”).



2022] THE CASE FOR SCHOOL CHOICE 185

B. Counterarguments

Several practical disadvantages to school choice programs do exist, namely
inadequate transportation to schools outside of school bus transportation
boundaries and the importance of parental motivation in the effective utilization
of school choice programs. However, lack of transportation could be partially
overcome as a significant barrier by requiring municipalities to provide
transportation for children attending schools outside of their assigned district, as
is the case in Denmark.137 Regional bus systems could be developed to provide
children with free transportation to schools within the region in which they reside.
Recognizing the costs and planning difficulties of expanding bus routes, such
transportation could not feasibly cover entire states; however, expanding public
transportation options could ensure that families have the ability to seek a school
outside of their geographic district. Given financial constraints on local
governments, transportation would likely still constitute a barrier, but at least
families could exercise the option to enroll their students at out-of-district schools
and be given the opportunity to try to make it work.

In terms of parental motivation, critics note that “[d]espite the fact that
charter schools are often billed as a way to expand options for disadvantaged
students, parents must gather information and take the initiative to seek out a
charter school, actions that are easier for college-educated parents than for those
with limited education."138 Although knowledge of the existence of school
voucher programs is paramount to getting students enrolled, the fact that parents
and students must be aware of voucher programs and other school choice
programs in order to utilize them should not discount the programs as a valid
option to provide equity in choice for parents and students of all socioeconomic
backgrounds. Evidence shows that school choice can engender increased parental
investment in education. In a study of D.C’s Opportunity Scholarship Program
(OSP), researchers noted that providing eligible families (those with an income
below 185 percent of the federal poverty level) with schooling options for their
children resulted in most parents “moving from the margins to the center of their
children’s academic development,” by taking the time to review and evaluate the
available schooling options similarly to purchasing a home or car, even though
“the average family in the OSP does not own a home or car.”139 Thus, this study
demonstrates that simply providing options where there previously were none
aside from the assigned public school can result in parental motivation to take an
active role in education.

137. HOULBERG ET AL., supra note 69, at 59.

138. Neubia L. Harris, Adequate Education: The Disregarded Fundamental Right and the

Resurgence of Segregation of Public Schools, 45 MITCHELL HAMLINE L. REV. 237, 255 (2019).

139. Burke, supra note 126 (citing Thomas Stewart, et al., Family Reflections on the District

of Columbia Opportunity Scholarship Program, UNI. OF ARK., (Jan. 2009),  http://www.

uaedreform.org/wp-content/uploads/2009/01/Family_Reflections_DCOSP_2009_Final.pdf

[https://perma.cc/J8CX-NFTU]).



186 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

Nonetheless, it is important to note that advancing school choice programs
as a way to ensure that all students receive a quality education admittedly does
not account for the reality that many children do not have parents who are
invested enough in their educational attainment to seek out an alternate education
for them. In an ideal world, in which parents were fully equipped with the
knowledge, skills, and resources to take an active role in their child’s
development and education, school choice could serve as an incredible equalizer
amongst socioeconomic classes. However, in reality, public education is a lifeline
for many students who cannot rely on their parents to meet all of their needs. As
a result, school choice programs should be a supplement to, and not a replacement
for, a robust public-school system to ensure that students without a strong support
system at home still have the opportunity to succeed. 

Additional studies have attacked the validity of school choice programs on
the basis of student outcomes.

Long-term studies have also revealed that voucher programs have no
advantage in improving academic achievement for students attending
private schools on vouchers. For example, of the 158 private voucher
schools reporting in Florida, only eighteen achieved statistically
significant increases in reading and math from 2011 to 2014. In fact,
thirty-one of those schools reported statistically significant losses in both
subjects over the same period of time.140

Several additional studies of school choice programs have also indicated no
positive academic outcome results as well as negative academic outcome
results.141 Rather than serving as evidence upon which to condemn school choice
programs as a whole, these findings demonstrate the complexity of improving
student outcomes and the fact that the same intervention that works for one child
may not work for a different child. One literature review noted that while students
in private schools traditionally perform better, it is difficult to say that vouchers
would improve student achievement for all given the “difficulty in identifying the
impact of schools on student achievement.”142 Parents who care about their
child’s educational progress should nonetheless have the choice to send their
child to a private school on a voucher rather than accept the conditions of a public
school assigned by zip code. School choice programs are not the only solution;
however, they can afford some disadvantaged students the ability to succeed by
providing a different learning environment.

C. COVID-19 and Education

The need for school choice has become magnified by the coronavirus
pandemic as schools have been shuttered and instruction has gone virtual. While
the need for school choice existed prior to the pandemic in order to provide equal

140. N. Harris, supra note 138, at 258.

141. The 123s of School Choice, supra note 118.

142. Barrow et al., supra note 110, at 3.



2022] THE CASE FOR SCHOOL CHOICE 187

opportunity to disadvantaged students, the coronavirus pandemic has made this
need more acute. Shifting from in-person instruction to virtual education, a policy
advanced in the name of public health, has only served to exacerbate inequality
between racial groups as well as urban and rural students versus suburban
students.143 

On the whole, students are struggling. One study seeking to ascertain
COVID-19-caused learning loss estimates that, amongst the 17 states studied,
“the average student lost between 57 to 183 days of learning in reading and from
136 to 232 days of learning in math.”144 In Indiana, the range between the number
of days of learning lost is especially significant, with reading learning loss at an
estimated four to 332 days and math learning loss at an estimated 112 to 406
days.145 Students on the high end of each range will be struggling to catch up for
years, potentially requiring them to repeat grade levels, as the number of days lost
surpasses the 180 days in each school year.146 The estimates also demonstrate
inequality in education in terms of the quality of a school, involvement of parents,
and resources available.147 With education an essential component to success,
filling some of these gaps by providing students who have fallen severely behind
with the resources necessary to advance is paramount. Additional educational
options and resources are desperately needed for struggling students. With such
a range in learning loss in Indiana, as well as across the country, each state should
be advancing policies like school choice that are targeted at providing each child
with the education necessary to not only recuperate their losses but to succeed.

Allowing students increased ability to choose their school affords them the
capacity to tailor their learning better to suit their needs. Governor Henry
McMaster of South Carolina attempted to provide more students such an
opportunity by allocating $32 million of federal coronavirus aid to funding
vouchers for students to use at private schools.148 According to the learning loss
study, South Carolina’s students have experienced the highest reading learning
loss of every state studied as well as the second-highest math learning loss,
showing just how dire the need for quality education is for South Carolina's

143. Elaine S. Povich, Virtual Learning Means Unequal Learning, STATELINE, (July 29, 2020) 

https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/29/virtual-learning-

means-unequal-learning [https://perma.cc/WRZ3-PDKL].

144. Eric Weddle, Study: Pandemic Learning Loss ‘Chilling’ for Indiana, Other States, WFYI

INDIANAPOLIS (Oct. 2020), https://www.wfyi.org/news/articles/study-pandemic-learning-loss-

ch il l in g-for -in d ian a-o th e r -s t a t es# :~ :t ex t= An%20average% 2 0 stu den t% 2 0 in %

20Indiana,coronavirus'%20impact%20on%20student%20academics [https://perma.cc/4QVB-

RVZE]. 

145. Id.

146. Id.

147. Id.

148. Maayan Schechter, Judge Temporarily Blocks McMaster’s $32M Spending Plan for

Private School Vouchers, THE STATE (Jul. 22, 2020),  https://www.thestate.com/news/local/crime/

article244407467.html [https://perma.cc/Y8QW-J3XX].



188 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

students.149 However, a South Carolina state court enjoined Governor McMaster
from executing his voucher spending plan, finding that it unconstitutionally
provides public aid to religious institutions.150 The Court’s decision illustrates the
harmful effect of Blaine amendments on voucher programs, constituting a barrier
to empowering economically disadvantaged families.151 Given that the South
Carolina Supreme Court held in 1971 that providing public funds to children to
attend private schools violated the state constitution’s Blaine Amendment, it
would take a redefinition of the Blaine Amendment’s direct benefit test (as was
the case in Indiana) or a repeal of the provision entirely in order for South
Carolina to establish a voucher program.152 Since “[m]any smaller private schools
with large campuses or big buildings have the ability and resources to spread
students out in classrooms,” allowing more students to enroll in private school
amidst the pandemic could have benefitted both voucher-awarded students as
well as public school students, who possibly could have returned to in-person
learning with fewer classmates.153 States without legal hindrances to vouchers
should prioritize student health, safety, and learning outcomes by enabling their
use to combat the devastating effects of COVID-19.

Survey data indicates that public opinion of school choice programs is higher
than in years past, a fact that could be partially attributable to the coronavirus
pandemic and bodes well for states seeking to enact such policies.154 The survey
reveals public support for educational savings accounts at 81 percent.155 One of
the most flexible forms of school choice, educational savings accounts allow
parents to use public funds for multiple educational purposes in addition to
private school tuition, such as tutoring, therapies for students with special needs,
textbooks, and other instructional materials.156 Virtual instruction can present
unique challenges, and some parents have been able to fill in educational gaps by
virtue of their financial means, leaving those without such options behind. For
instance, of the parents surveyed, 19 percent reported having a child in a learning

149. Estimates of Learning Loss in the 2019-2020 School Year, THE CENTER FOR RESEARCH

ON EDUCATION OUTCOMES, STANFORD UNIVERSITY, https://credo.stanford.edu/sites/g/files/

sbiybj6481/f/short_brief_on_learning_loss_final_v.3.pdf [https://perma.cc/U7JA-32GL].

150. Schechter, supra note 148; See Adams v. McMaster, 851 S.E.2d 703 (S.C. 2020).

151. See Espinoza v. Montana Dep’t. of Rev., 140 S. Ct. 2246 (2020).

152. See Hartness v. Patterson, 179 S.E.2d 907 (S.C. 1971); see Meredith v. Pence, 984 N.E.2d

1213 (Ind. 2013).

153. See Povich, supra note 143.

154. 2020 Schooling in America Series: Changing Perception on Schools and Record Support

for School Choice, EDCHOICE (Dec. 15, 2020), https://www.edchoice.org/engage/2020-schooling-

in-america-series-changing-perception-on-schools-and-record-support-for-school-choice/

[https://perma.cc/DSP6-M3ZT].

155. Id.

156. Public Opinion on K-12 Education During the COVID-19 Pandemic: 2020 Schooling in

America Wave 2, EDCHOICE (Oct. 20, 2020), https://www.edchoice.org/wp-content/uploads/

2020/12/2020-SIA-Wave-2-Final.pdf [https://perma.cc/759C-43TU] [hereinafter “Schooling in

America Wave 2”]. 



2022] THE CASE FOR SCHOOL CHOICE 189

pod, which means “small groups of children, organized by parents gathering to
learn together” and assisted by either parents or a hired teacher.157 Unsurprisingly,
“higher-income parents are roughly three times as likely to indicate participation
[in a learning pod] compared to lower and middle-income households.”158

Moreover, “higher income parents are much more likely to seek out tutoring for
their child this school year, compared to lower or middle-income parents.”159

Educational savings accounts could serve as a means of bridging socioeconomic
gaps by enabling families who cannot afford to hire a private tutor or participate
in a learning pod. 

In contrast to support for school choice, the survey shows greater disfavor
with K-12 education than in the past several years, with “more than three out of
five Americans (63%) say[ing] K-12 is on the wrong track.”160 Despite this
disfavor, both support and opposition for voucher programs were reported as
higher than ever before, which indicates an ideological split among the public
regarding where best to invest state resources.161 Of the 73 percent of respondents
who expressed support for vouchers, it is likely that many of them believe that
educational diversification is the answer to improving student outcomes and
responding to the pandemic.162 On the other hand, the coronavirus has
demonstrated the importance of public school investment and attendance to be
sure that disparities amongst racial groups and socioeconomic classes do not grow
wider. Based primarily upon providing families with additional resources and
options as well as the evidence indicating that school choice can improve area
public schools, expanding school choice programs merits exploring, especially
as students begin to recuperate learning lost during the 2019-2020 school year
and beyond.

V. CONCLUSION

Rather than advocate for the establishment of a fundamental right to
education in the U.S., as is the case in Europe, the U.S. should promote school
choice programs as a way to empower families to determine the course of their
child’s education when they otherwise could not afford to. This approach to
advancing quality education is preferable to establishing a judicially managed
right to education because of the policy considerations that go into state education
budgets as well as the difficulties that federal courts would have in determining
the root causes of poor student performance and any subsequent infringement of

157. Id. See also Povich, supra note 143.

158. Schooling in America Wave 2, supra note 156.

159. Id.

160. Id.

161. 2020 Schooling in America Series: Changing Perception on Schools and Record Support

for School Choice, EDCHOICE (Dec. 15, 2020), https://www.edchoice.org/engage/2020-schooling-

in-america-series-changing-perception-on-schools-and-record-support-for-school-choice/

[https://perma.cc/DSP6-M3ZT].

162. Schooling in America Wave 2, supra note 156.



190 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:163

the government on students’ fundamental right to education. Rather than address
failure to educate after the fact, when students are subject to languishing in failing
schools due to compulsory attendance laws and inability to seek education
elsewhere, school choice ensures that students are not trapped by virtue of their
financial situation in schools that are not properly educating them. The U.S.
should look to European countries such as Belgium, Denmark, and the United
Kingdom for guidance on establishing an education system that prioritizes the
fundamental right of parents to direct the upbringing and education of their
children in the form of enabling highly available school choice programs.

Highlighting educational disparities amongst geographic areas and
socioeconomic classes, the U.S. educational system should allow for increased
school choice in the form of inter-district school transfers or open enrollment, as
well as the ability for disadvantaged students to use public funds in furtherance
of their education as they and their parent(s) deem fit. Those who can
independently afford to send their children to a private school or move to an area
with higher quality public schools should not be the only families who have the
privilege of choosing a different education for their children aside from that
which is available through their geographically assigned public school. With high
levels of poverty corresponding to low levels of educational attainment, achieving
the level of financial success required for parents to send their children to private
schools or moving to more expensive areas can be unattainable, creating a
generational cycle of poverty. Empowering families with school choice can serve
to remove barriers to achievement and put families of lower means on the same
playing field as wealthier families. 

Despite its benefits, both as a matter of principle and as a way to support
student learning, school choice is not a perfect, one-size-fits-all solution given
logistical barriers such as transportation and lack of parental capacity or
motivation to seek out other educational options for their children. However,
increased educational options and resources are especially needed in light of the
coronavirus pandemic. With virtual instruction becoming ubiquitous across the
country in the spring of 2020, inequalities amongst races and socioeconomic
classes have become more apparent, and governments should step up to fill in
these gaps so that already disadvantaged students do not fall further behind.


	A. Non-Traditional Public-School Choice