Preferencing Educational Choice: The Constitutional Limits

54 Pages Posted: 25 Oct 2017

See all articles by Derek W. Black

Derek W. Black

University of South Carolina - School of Law

Date Written: October 24, 2017


Rapidly expanding charter and voucher programs threaten a new education paradigm in which access to traditional public schools is no longer guaranteed in some communities. In some instances, choice programs are phasing out traditional public schools altogether. The most harmful effects of choice, however, occur at the local level, not the state level. Thus, this Article does not challenge the general constitutionality of choice programs. Instead, the Article identifies limitations that state constitutional rights to adequate and equal education place on choice policy.

First, states cannot preference private choice programs over public education. This conclusion flows from the fact that most state constitutions mandate public education as a first-order right for their citizens. Second, choice programs cannot have the practical effect of impeding educational opportunities in public schools. Education clauses in state constitutions obligate states to provide adequate and equitable public schools. Any state policies that deny students those opportunities are unconstitutional. Choice policies that, for instance, reduce public funding for education, stratify opportunities, or intensify segregation fall in that category.

Relying on numerous state statutes and often-overlooked district level data, this Article reveals that choice programs in several states are violating both of these constitutional limits.

Keywords: Charter School, Voucher, Education Tax Credit, School Funding, Right to Education, Segregation, Unequal Opportunity, Adequate Education, Public School, School Choice

Suggested Citation

Black, Derek W., Preferencing Educational Choice: The Constitutional Limits (October 24, 2017). Cornell Law Review, Forthcoming, Available at SSRN:

Derek W. Black (Contact Author)

University of South Carolina - School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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