INTRODUCTION
Until relatively recently, property and education were inextricably linked because students’ publicly funded education options were limited to the district public school assigned to them by virtue of their residential address. Parents—or at least parents with the financial means to do so—“chose” their children’s schools by either moving or paying tuition at a private school. Over the last several decades, however, this has changed. A majority of states have now enacted (to varying degrees) policies embracing educational choice for parents by funding a variety of educational options both within and outside of the traditional public school system, including charter schools, private-school-choice programs, and open enrollment for district public schools. Debates about the wisdom and efficacy of these parental-choice policies are intense and far ranging, including among the contributors to this Symposium, as are debates about the appropriate scope of school-choice policies. Some argue that public education expenditures should be concentrated on traditional (district) public schools;
others would limit parents’ choices to district and charter schools;
and still others support private-school-choice programs that enable parents to use public funds to send their children to private and faith-based schools (in addition to choices among district and charter schools).
Wherever one falls in these debates, there is no question that the American educational landscape has shifted dramatically in the past several decades, thanks in large part to the expansion of policies expanding the publicly funded educational options available to students.
My maximalist views on parental choice as education policy are well established,
and it is not the purpose of this Essay to rehash them here. Rather, the purpose of this Essay is to discuss the underappreciated fact that parental choice advances both economic development and education policy goals. This is because parental-choice policies decouple property and education by unlinking students’ educational options from their residential addresses. By decoupling property and education, parental-choice policies serve at least three economic development functions: First, they reduce incentives for center-city residents to move from urban neighborhoods to suburban ones in order to secure space for their children in higher-performing suburban public schools.
Second, they reduce the likelihood that urban Catholic schools will close by leveling the competitive playing field between low-cost urban private schools, which must charge tuition, and district- and charter-school options, which are tuition free. This leveling is important because, as my previous work with Professor Margaret Brinig demonstrates, Catholic schools—which are rapidly disappearing from urban neighborhoods—are important, stabilizing community institutions in urban neighborhoods.
Third, these policies help reduce legal and economic barriers to mobility between municipalities within metropolitan regions, thereby addressing the persistent challenge of intrametropolitan economic inequality.
It is important to note that, while all parental-choice policies decouple property and education to some extent, these economic development effects are likely to be greatest for universal parental-choice policies that maximally delink residential address and educational options by permitting parents to use public funds to send their children to the district, charter, or private school of their choice. In July 2022, Arizona became the first state to embrace universal parental choice—that is, to give parents the option of using some of the public funds allocated for their children’s education at district, private, and charter schools—when it enacted legislation that expanded access to the Arizona’s Empowerment Scholarship Account (ESA) program to all K–12 students.
Beginning in September 2022, every child became eligible to receive approximately $7,000 in public funds to spend on a wide array of educational expenses, including private-school tuition, “microschooling,”
online courses, tutoring, textbooks, educational therapies, and curricular materials for homeschooling.
Even before this legislation, Arizona offered students the option of enrolling in any public district school in the state (if space was available) or one of over 500 charter schools.
Arizona also has three programs granting tax credits for donations to organizations funding private-school scholarships.
A few days after the ESA expansion took effect in Arizona, West Virginia became the second state with universal parental choice when the state supreme court rejected a state constitutional challenge to a similar ESA program, which was enacted in 2021 but was on hold due to litigation.
In 2023, Arkansas, Florida, Iowa, and Utah followed suit, enacting universal education savings account programs,
and Oklahoma adopted a universal refundable tuition tax credit.
Like Arizona, Arkansas, Florida, Iowa, and Utah also have unrestricted open-enrollment policies for district public schools and charter schools.
West Virginia also authorizes both open-enrollment policies and charter schools, but the state currently caps the number of charter schools at ten and allows districts to set their own open-enrollment policies.
Although the recent embrace by six states of universal parental choice reflects, in many ways, a seismic shift in education policy, momentum for parental choice has been building for decades. Thirty states, the District of Columbia, and Puerto Rico have one or more private-school-choice programs,
which collectively enabled 700,000 children to attend a private school during the 2021–2022 school year.
Moreover, while 2023 may yet eclipse it, 2021 was the most successful year in private-school-choice history: That year, more than two dozen states enacted, improved, or expanded choice programs, and several states—including Indiana, Ohio, and Wisconsin—opened participation in school voucher programs to a large proportion of K–12 students.
And several recently elected governors have made universal private school choice a legislative priority.
Public-school-choice policies are even more widespread. Currently, forty-five states authorize charter schools, which now educate over seven percent of all public-school students.
From 2019 to 2020, nearly 3.5 million students attended one of 7,700 charter schools in the United States.
Finally, many states and school districts offer parents the option of enrolling their children in a district public school other than the one assigned to them by virtue of their residence, sometimes as a matter of right.
This Essay is organized as follows: Part I describes the current land-scape of parental-choice policies that decouple property and education. These policies, which are embraced to varying degrees in different states, include: (1) in a number of states, open-enrollment policies that give par-ents the option of sending their children to district public schools other than the one geographically assigned to them, including—in some cases—any school with available space in any school district in the state; (2) in forty-five states, charter schools, which are privately operated but publicly funded and called “public schools” in all state laws; (3) in thirty states, private-school-choice mechanisms that enable students to use public funds to attend a private school (or home school). Part II then discusses benefits of decoupling property and education for both central cities and the overall economic health of American metropolitan areas. These include: (1) reducing a major incentive that parents of school-age children have for living in suburbs rather than central cities—namely, the relative academic performance of district public schooling options;
(2) helping to stem the tide of urban Catholic school closures, thereby preserving important stabilizing community institutions in urban neighborhoods; and (3) addressing economic inequity within metropolitan areas by reducing suburbs’ incentives to erect barriers to intrametropolitan mobility, including exclusionary zoning policies.
The Essay concludes with some tentative observations about the implications of decoupling property and education for future developments in education law. In particular, these developments further undermine the factual predicates behind so-called “school funding equity litigation,” which seeks to leverage state constitutional provisions guaranteeing a right to education to secure more funding for district public schools in high-poverty communities.
As a number of commentators have noted, judicial decisions invalidating public education funding systems on state-constitutional grounds are predicated on somewhat-outdated assumptions about an increasingly tenuous connection between local property taxes and public school resources.
By decoupling property and education, parental-choice policies further increase the tensions between the prevailing theory of these funding equity cases and the on-the-ground reality of education finance in many states.
This is an opportune time to consider the economic development benefits of decoupling property and education. Many cities continue to struggle to recover economically from the COVID-19 pandemic, which appears to have permanently and dramatically restructured the nature of work for many Americans.
The availability of remote work has reduced a major incentive for professionals to live in urban neighborhoods—proximity to their offices—thereby increasing the risk of financial crisis for center cities.
At the same time, serious crime appears to be on the rise in urban centers,
increasing the need for stabilizing urban community institutions like Catholic schools and more residential mobility options for low-income and minority residents in metropolitan areas who are all too often priced out of suburban communities by exclusionary zoning policies motivated, in part, by a desire to preserve elite school district status.