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31 Conn. L. Rev. 847 (1998-1999)
Governments, Families, and Power: A Defense of Educational Choice

handle is hein.journals/conlr31 and id is 857 raw text is: Governments, Families, and Power: A Defense
of Educational Choice
One of the most promising reforms in educational organization today
is educational choice: allowing families to use their fair share of school
funds' to obtain an education for their children at the accredited school of
their choice, whether public or private, secular or religious. Long sup-
ported by members of the Catholic minority who objected to the Protestant
character of public schools, the idea of educational choice has recently
been embraced with particular enthusiasm by inner city parents, as a re-
sponse to the failure of the public education establishment to meet their
children's needs Experimental choice programs have been enacted in
Milwaukee and Cleveland, and variants are being tested in other states.
Defenders of the status quo-most particularly, teachers' unions-
have responded with lawsuits contending that educational choice programs
that include religious schools violate the Establishment Clause of the First
Amendment. In the principal decision to date, the Wisconsin Supreme
Court rejected that contention. That court held that programs of educa-
tional assistance are consistent with the First Amendment if they provide
public aid to both sectarian and nonsectarian institutions (1) on the basis of
neutral, secular criteria that neither favor nor disfavor religion; and (2)
only as a result of numerous private choices of the individual parents of
school-age children.3 That decision accords with the Supreme Court's
Establishment Clause jurisprudence of the past fifteen years, which has
* Presidential Professor, University of Utah College of Law and counsel for Miller Re.pondents
and Representative Annette Polly Williams in Jackson v. Benson, 578 AJ.l2d 602 (IWl). cert.
denied, 119 S. Cf 466 (1998).
1. In practice, this generally means far less than the per pupil subsidy of public cducation. In the
Milwaukee voucher experiment, for example, nonpublic school students received only the state
portion of educational funds, which according to the state supreme court is less than 40% of the
average per pupil expenditure. See Davis v. Grover, 480 N.W.2d 460,476-77 (Vis. 1992).
2. See The 30th Annual Phi Delta KappalGallup Poll of the Public's Attitudes Towrd the Public
Schools, (visited Feb. 26, 1999) <http.//www.pdkintl.org/kappan/kp9809-1ahtm> (showing that over
two-thirds of minority parents favor educational choice).
3. Jackson v. Benson, 578 N.W.2d 602,617 (Vis.), cert. denied, 119 S. Ct. 466 (1998).

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