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How Legislation and Litigation Shape School Choice

Since its appearance on the educational landscape, school choice has engendered considerable controversy. Those controversies are captured in two forms of “law”--legislation and litigation. Government legislation at all levels codifies the results of political struggles around school choice and defines choices available to parents. Those unhappy with the results have brought litigation to determine whether the policies are consistent with constitutional provisions and other existing laws. This policy brief examines the relationships between various forms of school choice and the legal authority that both binds and bounds them. As the discussion will show, both the development of and legal challenges to school choice in its various forms can be traced to a tension between the legal principle that parents should be able to direct the upbringing of their children and the legal principle of parens patriae (the government is the ultimate guardian), which forms the foundation for compulsory education in the United States. As such, school choice legislation and litigation go to the very heart of public education and the societal values it reflects.