Will Schools Ever be Free from the Chains of State Control?

AMERICA'S educational history is the story of a conflict between two strong traditions. On the one hand is academic freedom. Control once was decentralized, and educational institutions were voluntary, cooperative efforts between parents, teachers, students, and charitable organizations and local governments. Parents sought options for their children that harmonized with their religious and cultural traditions, and constitutional protections--including freedom of expression, religion, and association--helped to protect diverse institutions from state repression.

On the other hand, there is state-controlled schooling. The rise of the public school accompanied large waves of immigration in the 19th century. Government control was thought necessary in order to assimilate the children of immigrants, and to avoid conflicts over state subsidization of minority religious concerns. In one respect, this latter tradition largely has carried the day; well over 80% of kids now attend public schools.

Nonetheless, an ethos of educational freedom still exists. While most children attend public schools, the Constitution protects the right of alternative private ones to exist, and the right of parents to choose them. Many feel that mothers and fathers are better able to make childrearing decisions--including those relating to education--than the state.

In the wake of the Supreme Court's Zelman v. Simmons-Harris ruling upholding school choice programs, more and more families are questioning whether state control over education really is best. Decades of failure in the inner cities have contributed to the recent momentum against standard state solutions to social problems, and the success of choice programs in Milwaukee and elsewhere has challenged the conventional wisdom that families with low incomes cannot or will not make good decisions regarding their offspring's education.

The dawn of the 20th century saw an escalation in the battle between proponents of educational freedom and activists bent on using the law to restrict flexibility. Efforts to restrict options sprang primarily from a continuing cultural backlash against the large waves of immigrants pouring in from southern Europe and Asia. Like those of the Reconstruction Era, but unlike earlier arrivals, these individuals often were not Protestant. Instead, Jews, Italians, Poles, and others were subject to widespread discrimination.

World War I significantly exacerbated this distrust. This backlash against immigrants--particularly those from Germany--was called nativism, or "100% Americanism." Immigrants were seen as ideologically suspect, thus unreliable supporters of the war effort. National and local organizations routinely investigated individuals and groups deemed hostile to the U.S. action in Europe.

The U.S. Supreme Court, however, effectively defended educational freedom from some of the era's worst assaults, striking down restrictions on teaching foreign languages as well as compelled full-time attendance at public schools.

The demise of these laws at the hands of the Supreme Court marked the beginning of an era in which a safe haven existed in American law for parenting and family life. Not just foreign languages, but any other areas of learning that parents and students wished to pursue now were protected from arbitrary state interference. This proved critically important in years to come, as the state schooling movement gained economic and political clout. The controversy also tied parents' liberty interest in raising children explicitly to freedom of intellectual inquiry and from official orthodoxy. Citizens reaffirmed their right to think differently, and recognized that educational freedom was critical to an intellectually diverse and tolerant society.

Parents fight back

Florida now has two voucher programs: MeKay Scholarships for students with disabilities, and Opportunity Scholarships for individuals attending failing schools (those that received an F on the state report card twice within four years). Nearly 10,000 special education pupils in Florida receive McKay vouchers, and parents report high satisfaction with the results. Moreover, schools in danger of losing students under the Opportunity Scholarship program have improved, achieving standardized test score gains more than twice as large as those made by other public schools.

Within months of the Court's decision, state legislators introduced over 40 voucher, tax credit, or charter school proposals nationwide.

While recent victories for educational freedom are encouraging, they merely are the beginning. Although school choice is legal, it is not widespread, and opponents are threatening to smother private schools in a morass of new regulations, purporting to dictate everything from curriculum to staffing. Four critical battles must be secured if educational freedom is to survive, and someday thrive: elimination of state legal barriers to choice; provision of choice to all low-income families; protection of private schools from overregulation; and legal safeguards for home schooling families.

Many legislators still face uncertainty as to whether choice programs are legal under state constitutions. The most common barrier is the Blaine Amendments. Adopted during the 19th and early 20th centuries, these provisions explicitly prohibit states from funding sectarian education, directly or indirectly. However, various organizations are launching legal attacks against these amendments. For example, the Institute for Justice has intervened on behalf of parents in a dispute over the legality of Florida's Opportunity Scholarship program, contending that the state's objection violates Federal statutes.

Supporters of increased regulation argue that private schools, like public ones, should submit to evaluations by school boards or other government officials. They claim regulations are "accountability measures" that level the playing field by making private schools "comply with the same standards" as public ones. This accountability rhetoric, when applied to private institutions, is an antichoice political response to the No Child Left Behind Act, which demands that public schools collect and report student achievement data to Federal officials in return for necessary funding. The teacher unions have seized upon this argument as part of their tactical response to Zelman; they plan to use accountability as a weapon against choice programs by demanding burdensome regulations designed to stifle private school participation.

Finally, despite a range of burdensome state regulations, home schooling rapidly has become more popular in recent years. However. conflict between home-schooling parents and administrators has increased incrementally since districts often receive Federal and state funds based on attendance numbers.

California is one notable example. Its laws make it one of the most difficult states in which to home school children--students must learn from a credentialed tutor, a state-approved charter school, or a home study program supervised by a public school district. To circumvent the credential requirement, parents declare their homes private schools. Recently, the state's Department of Education took steps to block this practice, warning parents that they needed teaching credentials or a public school affiliation. In a memo to administrators outlining the new filing process for private schools, Deputy Superintendent Joanne Mendoza wrote that home schooling "is not an authorized exemption from mandatory public-school attendance." The Department retreated, however, when its new Superintendent of Public Instruction announced that the state no longer would consider every home schooled child a truant.

Opponents of educational freedom often cite the U.S.'s tradition of state-controlled schooling in an effort to show that parental control over education is a new, perhaps un-American concept. These critics are wrong. This country boasts a long, robust history of valuing and protecting educational freedom. This tradition, grounded in liberal parentalism--a philosophy that limits state involvement in the intimate details of family life--benefits children while preserving social tolerance and limited government. If parents are empowered with options and schools are equipped with autonomy, the day may come when all families can enjoy the benefits of educational freedom.

Marie Gryphon is an education policy analyst at the Cato Institute, Washington, D.C. Emily A. Meyer is a research assistant at Cato.