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Today marks the 25th anniversary of Davis v. Grover, a Wisconsin Supreme Court decision that upheld as constitutional Wisconsin’s Milwaukee Parental Choice Program (MPCP).  Enacted the year before, the MPCP was the first modern school choice program, created by a coalition of African-Americans and the state’s Republican governor, Tommy Thompson.  Over three separate dissents, the majority of the court heeded the plea with which concurring Justice Louis Ceci opened and closed his opinion: “Give choice a chance!”

From 341 students in its first year, the MPCP has grown to nearly 28,000 students in 2016.  In the course of those years it has been improved several times; most notably in 1994 when parents were allowed to choose religious private schools for the first time.  This precipitated another constitutional challenge under the religion clauses of both the U.S. and Wisconsin constitutions.  Again the Wisconsin Supreme Court rebuffed the challenge.  The Ohio Supreme Court then rejected a similar challenge to a school choice program for Cleveland schoolchildren modeled on the MPCP.  The U.S. Supreme Court upheld that program’s constitutionality under the federal Establishment of Religion Clause in Zelman v. Simmons-Harris in 2002.  That decision largely ended federal constitutional challenges to school choice programs, which had proliferated ever since Davis.

The growth in size and scope of these programs has been nothing short of amazing.  Today there are statewide programs for large numbers of eligible students in 10 states; programs targeted to special needs students in 14 states; and already five states with programs that use an education savings account model.  Many of these programs fund scholarships with state dollars, but a roughly equal number use tax credits to incentivize donations to private charities that award scholarships.

This proliferation of different program designs allows policymakers to see what works, and to engage in efforts to improve ineffective programs.  But with school choice programs the proof is in the pudding:  Do parents want and use them?  On this the data are unequivocal—parents want these programs and will use them if given the chance.  As noted above, the MPCP has experienced an 81-fold increase over the past 25 years, and this year over 400,000 students will use scholarships provided through school choice programs to attend private schools few could have attended but for the programs.  While 400,000 may seem like a small number it exceeds the total public school enrollment of 15 individual small states and the District of Columbia, and the combined public school enrollment of D.C., Vermont, Wyoming, and North Dakota.

The benefit of these programs is two-fold.  First, it allows low-income parents to choose their children’s schools to achieve a better fit for their children’s needs.  Better-off families can exercise school choice by choosing to live in areas with good public schools or by paying to send their children to private schools.  School choice programs empower low-income families to make the choice of private schools.

The other benefit of these programs is for families who choose to remain in the public schools.  School districts know they cannot take for granted the continued attendance of children from well-off families, and consequently pay attention to those families’ desires.  But low-income families could be safely ignored because until school choice their children were not going anywhere, literally and figuratively.  School choice thus not only empowers parents who opt out of public schools, but makes those who remain more valued by the districts.  School choice improves accountability by transferring power to parents who go and to parents who stay.

Nearly a century ago, the U.S. Supreme Court ended efforts to require all students to attend public schools, declaring in Pierce v. Society of Sisters (1925) that, “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”  For too long, the lack of resources has prevented low-income parents from exercising this liberty.  Thanks to Justice Louis Ceci and three colleagues on the Wisconsin Supreme Court, choice has been given a chance, and it is spreading throughout the states

– Richard Komer is a senior attorney at the Institute for Justice in Arlington, Virginia, which defended Milwaukee’s school choice program in court.

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