Sector Agnosticism and the Coming Transformation of Education Law

67 Pages Posted: 27 Apr 2016 Last revised: 23 Jan 2019

Date Written: April 12, 2016


Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors — discussed in detail below — that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, but publicly funded, schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This paper explores three of the most significant of these implications.

Keywords: education, parental choice, charter schools, state action doctrine, vouchers

JEL Classification: I2, I22, I28; K39

Suggested Citation

Garnett, Nicole Stelle, Sector Agnosticism and the Coming Transformation of Education Law (April 12, 2016). 70 Vanderbilt Law Review 1 (2017), Notre Dame Legal Studies Paper No. 1916, Available at SSRN:

Nicole Stelle Garnett (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556
United States
574-631-3091 (Phone)


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