Abstract

School choice raises a number of legal issues that significantly affect its forms. This chapter begins with a discussion of how intra- and interdistrict choice programs tend to exacerbate both financial and racial disparities among schools, posing difficult challenges for lawmakers and educators. The chapter then examines legal issues involving charter schools and voucher programs. While state constitutions do not much hinder the enactment of charter school laws, the opposite is true for publicly-funded voucher programs encompassing private schools and tuition. At the same time, tax credit programs appear less vulnerable to state constitutional challenge. In any case, when public money begins to flow to schools participating in school choice programs, state regulation is close behind. As the chapter makes clear at several points, “regulatory creep” has become a major concern to operators of charter and private schools participating in voucher programs, because regulation reduces autonomy. Yet lawmakers often have little choice, given that education is considered a core governmental purpose that cannot be delegated without assurances that the public interest is being served. The key is to find the appropriate balance between too much and too little regulation. This chapter, then, provides an overview of the evolving legal framework within which school choice programs must operate.