School Choice and Social Controversy: Politics, Policy and Law by Stephen D. Sugarman, Paperback | Barnes & Noble
School Choice and Social Controversy: Politics, Policy and Law

School Choice and Social Controversy: Politics, Policy and Law

by Stephen D. Sugarman

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Venturing beyond debates over the merits of school choice, 11 papers discuss emerging patterns, public policy flashpoints, and legal constraints. The contributors are legal and education policy scholars. Sugarman is at UC-Berkeley; Kemerer is at the U. of North Texas. Annotation c. Book News, Inc., Portland, OR


Venturing beyond debates over the merits of school choice, 11 papers discuss emerging patterns, public policy flashpoints, and legal constraints. The contributors are legal and education policy scholars. Sugarman is at UC-Berkeley; Kemerer is at the U. of North Texas. Annotation c. Book News, Inc., Portland, OR

Editorial Reviews

From the Publisher

"...charter school operators--and their lawyers--ought to have copies, and study them carefully.
" —Martin Morse Wooster, American Enterprise, American Enterprise

"...a major contribution to the discussion of school choice." —Ralph D. Mawdsley, J.D., Ph.D., Ralph D. Mawdsley, J.D., Ph.D.

"...among the most thoughtful presentations of the policy issues represented by school choice and their consequences. Both sides in the emerging debate will find ammunition to support their position as well as analysis to undermine it. The authors are leading scholars, and the conclusions are often surprising.
" —Henry M. Levin, Teacher's College, Columbia U., Teacher's College, Columbia U.

"This important book on school choice moves beyond the pro and anti rants to discuss issues of law and public policy that any school choice plan must address. It highlights such matters as equity, collective bargaining, availability of schools, accountability, and finance; it analyzes evidence and history; and it does so with reasoned prose and analytic insight. A must read for anyone designing a school choice plan--or opposing it." —Carol H. Weiss, Harvard University, Harvard University

" be commended for recruiting a set of uniformly high quality scholars who have in turn contributed first-rate chapters.
" —Michael Giles, Department of Political Science, Emory University, Department of Political Science, Emory University

"A well-written treatise.... 'School Choice and Social Controversy' is an excellent volume. The writing is clear and lucid.... Students in educational history, school finance and administration, as well as the general reader will find this book of inestimable value." —Joseph T. Durham, President Emeritus, Community College of Baltimore, The Negro Educational Review, 10/1/2001

"The media has tended to draw universal conclusions about school choice from proposals that happen to cross the editor's desk. If this intellectual lapse has been forgivable, it is no longer. Sugarman, Kemerer, and company here display the raw material necessary to serious policy judgment. Systems of choice are legion; their differences matter. The serious critic now will look before leaping to conclusions and he will look here." —John E. Coons, University of California, Berkeley

"This book achieves its goal of dispassionately analyzing the legal and policy aspects of school choice.... the editors strike a helpful balance between scope of coverage and topical depth.... 'School Choice and Social Controversy' remains a leading synthesis of law and policy on the school choice issue." —Michael Heise, University of Chicago Law Review, 7/1/2001

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Chapter One

The Nature and
Extent of
School Choice



             Advocates of charter schools, school vouchers, and similar school reform ideas often talk as though American families today have no choice as to where they send their children for elementary and secondary schooling. These critics of the traditional public education bureaucracy typically portray it as an unresponsive and inefficient monopoly that simply assigns children to a school based upon their home address. This description fails to capture the very considerable degree to which families already select the schools their children attend.

    This chapter describes the nature and extent of school choice currently available and exercised. Accurately tallying up the choosers is difficult for several reasons, which we explore below; but it is worth noting at the outset that, by one plausible way of counting, more than half of American families now exercise school choice. Considerably more of that choice occurs in the public sector than in the private sector. Further, some families have more choice than others.

    That the current system provides more opportunities for school choice than is typically acknowledged does not directly speak to the question of whether altering the access or allocation of school choice would be a good idea. It does suggest, however, that there is grist for empirical analysis of issues that have tended to bedebated inabstract and theoretical terms.

Public School Choice

Most American children attend a public school to which they are assigned, usually on the basis of where they live. This is hardly the same as saying families have no choice. A world of no choice would be one in which families were told where they had to live and in which children in each neighborhood were required to go to school together; or in which the federal government gathered up all of America's young and sent them off to boarding schools based upon, say, a lottery or what a team of professionals thought was best for the children or for the nation. Our world, however, is very different. Put simply, by deciding where they live, families can generally determine which public schools their children will attend.

    Choice of Residence

    Given that reality, one might be tempted to say that all or nearly all parents are making a school choice for their children. After all, if their children are enrolled in neighborhood public schools, then merely by deciding not to move somewhere else, the parents are choosing to retain those assignments. It is probably fair to say that, at the extreme, if their lives depended upon it, or if their children's lives depended upon it, nearly all families could, and would, move. Surely most people would agree that the decision not to move is a far too expansive notion of what constitutes making a school choice for one's children. Inequities in the distribution of income and wealth, along with racial discrimination that persists despite open-housing legislation, mean that residential mobility is an option that is far more available to some families than others. On the other hand, it would just as surely be a mistake to say that no one chooses their child's school by deciding where to live.

    Clearly, the residential choices made by a large number of families are very much driven by school choice. Many families first decide precisely where they want their children to go to school, and having done that, they find a house or apartment in the right location. So many a household changes residence in anticipation of the eldest child heading off to kindergarten. Crossnational evidence suggests that the rate of moving among households with young children is especially high in the United States. Other families take schools generally into account when deciding where to live. For example, when moving into a metropolitan area many families opt for the suburbs, or for a specific suburb, because of the reputation of the schools. Realtors typically provide information about the schools near the homes they are trying to sell. There are books and consultants available to provide advice about the schooling consequences of a new place to live. Still other families deliberately move to get away from a poorly performing school or a bad school experience their children have had.

    It is also clear that many families pay little or no attention to the local schools when deciding where to live. Some families can only afford to live in one or two parts of town, and they will take the first adequate home or apartment that comes their way. Indeed, poor families seeking subsidized housing often have no choice at all as to where they live; they just take the one apartment offered to them by the local housing authority. Other parents may feel unwelcome in a new neighborhood or find it uncomfortable or otherwise undesirable to move away from where they were raised. Some families in this broad category might well wish to make a different school choice for their children but feel constrained to accept the local public school because of a sense that their residential opportunities are so circumscribed. It is important to remember too, of course, that for some poor families residential mobility may be imposed, not selected. Changing rents, job loss, or marital breakup can force parents to relocate against their will. One study found that children living with only one parent move twice as frequently as those living in two-parent households. Largely involuntary mobility in some low-income areas creates tremendous barriers to learning, both for the students who move and for the schools that must accommodate them.

    Other families could take schools into account when making a choice of residence, but they do not. Some, for example, move to new communities for employment opportunities and make their housing choices at a time when they are uninformed about the schools. Many couples move into a house or apartment before they have children, oblivious to the schooling situation, and simply stay on when they become parents, never really considering moving for schools that might be better for their children. There are those who put their own convenience (say, proximity to work) or taste (say, the kind of house they live in) ahead of any consideration of the local schools. Indeed, some parents may care little about their children's education, and still others may believe that they would not be very good at selecting a school if they tried. What all of these families know is that, wherever they live, there will be a public school available for their children. For some, that is good enough—just like the comfort many people take in knowing that there is a fire department somewhere in the neighborhood.

    There are no reliable data on how many families fall into these categories. It is not even clear which types of family described above ought to be counted as intentionally choosing their children's schools by deciding where to live. Is it enough that they thought at all about the neighborhood schools? Must the school have been decisive in determining where they live? What if the local school was really their second choice but the house was wonderful and that is why they made the decision? About the best we can do for now is report what parents say when asked in surveys. For example, in the National Household Education Survey conducted in 1993 by the National Center for Education Statistics, about half the parents whose children were assigned to the local public school claimed that "their choice of residence was influenced by where their children would go to school." This, of course, is a very vague statement. Nevertheless, if all of those families were counted as intentionally making a school choice through their housing location, then we are talking about something like 18 or 19 million schoolchildren, a level that would swamp all of the other school choices now occurring.

    Even if only 25 percent of all public school-using families were said to be making deliberate school choices through residential selection, that would cover more than 11 million children—approximately equal to the aggregate of all other sorts of school choice. Regardless of what the "right" number is, surely it is true that, for upper-middle-class and wealthier families who have considerable residential flexibility, school choice through housing choice is a potent and much-exercised option. The 1993 study noted above found that, in households with income of $50,000 or more, 60 percent of the parents whose children attended an assigned public school took the schools into account in deciding where to live, in contrast to parents of just over 40 percent of the children in households with less than $15,000 in income. Race, partly because of its correlation with income, but for other reasons as well, also can be associated with differential access to residential mobility as a vehicle for school choice. There is at least some evidence, though, that such racial barriers are diminishing. Relocation from central cities to suburbs by young white families with school-age children was a familiar pattern in older metropolitan areas during the 1950s and 1960s; there is convincing evidence that there exists a new pattern of black sub-urbanization that mimics the early white pattern in important respects.

    It is perhaps also worth noting that living in a specific place does not always guarantee access to the closest, or most convenient, public school. Sometimes quirks of attendance-area boundary drawing or problems of school overcrowding have caused certain homes or blocks to be connected to schools in less convenient locations (although families may well learn about this before they move in). In addition, some children are assigned to out-of-neighborhood schools for reasons of racial balance, either pursuant to a court order or because of a school district's own decision, although this sort of busing appears to be very much on the decline. Again, families might well be aware of what sort of busing may be in store for them before they make their residential choice.

    From time to time, public school attendance areas are redrawn, perhaps because new schools are opened or others are closed. These decisions often generate considerable local resentment, suggesting that the objectors care very much about their children's current school or at least are quite unhappy about the pending disruption.

    Intradistrict Choice

    Even when we exclude those who exercise choice via their housing location decisions, about half of the school choice now being exercised by American families is taking place in the public education system. Around 10 percent of elementary and secondary school students appear to be enrolled in public schools that were not assigned to them by virtue of where they live. The most common type of public school choice is intradistrict choice. That is, a significant number of children (perhaps 4 or 5 million) attend public schools run by their local school district that have been deliberately selected by their families in response to some sort of choice opportunity (that is, other than by mere assignment based on residence). Often, but not always, these schools are not the ones located nearest to where the family lives. These intradistrict choice schemes come in several varieties.

    NONNEIGHBORHOOD SCHOOLS. About one in seven school districts, and more than one in three districts with more than 10,000 pupils, has identified one or more schools as nonneighborhood schools. These schools might be termed alternative or experimental or thematic or selective, and they have been created for a variety of reasons. Sometimes admission is on a first-come, first-served basis or by lottery. Sometimes selection criteria are imposed by districts that operate talent-based schools in math and science, the arts, and so on. Some districts impose racial criteria on these programs—for example, by giving preference to those children whose presence will promote racial balance. In any event, students only attend because of family choice, with no preference given to those who happen to live closest. Of course, some families may enroll their children in such a school precisely because it is near to where they live.

    Some of the earliest examples of school choice of this sort can be found among the various specialty schools that offer innovative or accelerated programs for students whose high-level aptitude or creativity are not well or easily served by the conventional curriculum. The oldest among these have roots in the progressive education movement dating from the 1920s. Walnut Hills High School in Cincinnati, for example, was established in 1918 to serve academically gifted children; similar programs have long existed elsewhere, including the Bronx High School of Science in New York City, Lowell High School in San Francisco, and Boston's Latin School. Specialty schools providing technical and vocational training and special schools for troubled youngsters also have deep historical roots.

    A second major wave of alternative school formation occurred in the 1960s and early 1970s, often in response to parental and teacher pressures for a nontraditional curriculum. Because there is no universally recognized definition of what constitutes a specialty or alternative school, estimates of their prevalence necessarily are imprecise, but one source indicates that there are more than 2,200 of these choice schools in more than 1,000 districts. Amy Wells puts the number at between 3,000 and 6,000 public alternative schools. One study found that 3 million children attend such schools; another put the number even higher.

    Magnet schools are another important source of intradistrict choice, although they currently serve fewer students than do specialty and alternative schools. The magnet label is usually attached to choice schools that were intentionally developed as part of a school district's plan, sometimes in response to a judicial order, to achieve school integration without relying exclusively on mandatory reassignment. These schools generally use racial balance criteria in selecting among those who apply. Beginning in the mid-1970s, the number of magnet schools expanded rapidly for about ten or fifteen years. A 1982 study found 1,019 magnets in 138 districts, an increase from 14 districts in 1975. A 1995 study estimates that 1.2 million students were attending magnet programs in 2,433 schools located in 230 districts. Magnet schools are, for the most part, an option limited to urban areas, especially large and racially heterogeneous central cities. Based on the 1990 National Educational Longitudinal Survey (NELS), Adam Gamoran found that city students were almost three times more likely than the national average to attend magnet public high schools.

    School choice in the magnet school setting is meant to serve the opposite function than was intended by some school districts in the South that were engaged in "massive resistance" in the early years after Brown v. Board of Education. Rather than dismantle their previously all-white and all-black schools, some public school officials merely adopted the rule that students of either race could voluntarily transfer to any other school in the district. Unsurprisingly, this failed to generate a rush of white students to the black schools, and African American families claimed that their children would not at all be welcome at the hostile white schools. The U.S. Supreme Court held this pseudochoice regime unconstitutional in Green v. County School Board. The legacy of that strategy is that some advocates of school integration have been leery of choice ever since.

    NO NEIGHBORHOOD SCHOOLS. In a relatively few public school districts, all of the public schools are choice schools. Cambridge, Massachusetts, developed this scheme in 1981, followed later by cities such as Buffalo, New York; Montclair, New Jersey; and Berkeley, California. Children are not assigned to schools on the basis of neighborhood or given an entitlement to attend the school located closest to where they live. Every family must make a choice; many in fact opt for their neighborhood school. These communities generally impose racial balance criteria on the school selection process. Indeed, they have generally adopted this so-called controlled-choice approach as a way of eliminating racial isolation in their schools, often in the face of real or threatened judicial intervention. In a legal current environment in which judicial intervention for racial balance purposes is less probable, large-scale, controlled-choice plans now appear to be relatively rare, although some smaller districts have voluntarily adopted this scheme in recent years. Possibly because of its Cambridge origins, this approach appears to be most popular in Massachusetts, where, for example, at least nine districts adopted controlled-choice plans between 1987 and 1991.

    Some districts have moved toward districtwide choice, less as a tool for integration and more as a vehicle for encouraging educational innovation and accommodating families and children with diverse interests and needs. Indeed, in some places school authorities aggressively promote the obligation of families to choose among schools. New York City's District 4 is a prominent example. The community school district in the East Harlem area of the city began experimenting with public school choice around 1974, and in 1982 it eliminated attendance zones for all junior high students. This reform was the outcome of a coalition of renegade teachers, entrepreneurial bureaucrats, and a core of dissatisfied parents and community activists.

    INDIVIDUAL TRANSFERS. Some families would like to enroll their children in a neighborhood school that is located inside their district but in another neighborhood. In other words, they seek to add choice on top of what is otherwise basically a system of assignment by place of residence. Traditionally, public school districts have been highly reluctant to grant these requests as a matter of course, even if there is room in the desired school. In recent years, however, some districts have begun to welcome transfer petitions, or at least they welcome them if they promote, or do not undermine, racial balance. New York City is one example. Based largely on the perceived success of District 4, the New York City Board of Education, in 1993, established a general program to facilitate choice across all of its thirty-two community school districts. With New York City public schools currently serving well over a half million children, this policy, in theory, provides choice to a huge potential clientele, albeit in an attenuated form.

    Yet while nominally allowing students to transfer freely, the New York program restricts cross-community district transfers to cases in which space is available. In other words, neighborhood children still have first priority. Moreover, due to the high-enrollment pressures on New York City schools, space for outsiders usually is not available. The New York City choice plan is very different from mandatory choice schemes, such as Cambridge's controlled-choice plan, but when out-of-neighborhood schools they prefer have spaces available New York parents are allowed to enroll their children in them.

    In most districts, as noted, there are no such entitlements. Instead, individual transfer requests are still generally granted only for good cause—typically because the child is having a serious problem in the neighborhood school that cannot be readily solved there. To be sure, school districts vary quite a bit in the rigidity and uniformity with which they apply their attendance zone policies. Some districts have clear and explicit provisions for transfers—for example, when a child wants or needs a special program not available at the home school. Others have an informal process by which aggressive parents can obtain exceptions, sometimes by working with local principals and sometimes by lobbying their school board representative. In some communities, there are formal mechanisms with appeals processes that families seeking transfers may utilize. Washington, D.C., for example, combines some formal choice options (for example, an academic high school, a school of the performing arts, and special vocational skills programs) with a largely sub-rosa process in which principals in charge of neighborhood schools are given enormous discretion about whether to accept children seeking entry from outside their attendance zone. The official records on discretionary out-of-boundary enrollment deal only with transfers that have been officially sanctioned, and the official count indicates that there were more than 9,900 such enrollments in March 1994, accounting for about one in eight of the District's pupils. This leaves out the many reputed cases of students using addresses of friends or relatives in order to gain access to a more desirable school.

    Interdistrict Choice

    Some families wish to enroll their children in public schools located in other districts. Again, the public schools have traditionally opposed these requests except when very convincing reasons are given. School finance arrangements often discourage such transfers, especially if the rules of the game require both districts to approve, since it is often to the economic disadvantage of one of the districts. In some places, districts are willing to trade—that is, they will approve these requests on a one-for-one basis. Recently, however, interdistrict choice has expanded. According to one report, eighteen states have adopted choice plans that give children rights to enroll in public schools outside their district of residence. Minnesota's open-enrollment program, phased in between 1987 and 1990, allows students in grades kindergarten through twelve to apply to schools anywhere in the state. Home districts may not prevent a student from attending school in another district, and receiving districts may not deny applications to enter their schools unless space is unavailable. Although the Minnesota example has sparked a wave of copycat legislation, these plans differ somewhat from state to state. For example, in some states, school districts have the option of participating or not; if they do not, then neither may their students leave, nor may others enter. Ohio's experience, for example, has been that the major urban school districts have opted not to participate for fear of losing far more students than they could expect to attract.

    The key change brought about by interdistrict transfer plans is that students may leave without obtaining the permission of their home district. Nonetheless, children of families already living in the desired district have priority rights to attend their own district's schools. This means, in practice, that receiving districts can probably block in-transfers they oppose by refusing to acknowledge that they have space available. Other interdistrict voluntary transfer schemes have been adopted as part of metropolitan school desegregation efforts. In some of those plans, inner-city magnet schools are open to both in-district and out-of-district pupils on terms that will help further the community's racial balance goals. A few suburban districts have voluntarily opened their doors to inner-city schoolchildren as a way of promoting integration, but these programs tend to be very small in scale. Broader participation of the suburban schools has depended upon the forceful intervention of federal courts or state officials. Federal courts have very occasionally overseen the establishment of widespread interdistrict choice arrangements as a means of addressing metropolitan racial segregation; but in light of the Supreme Court's refusal to order integration of the public schools throughout the Detroit metropolitan area absent a showing of intentional exclusion of African American children from the suburban schools, they have been much less likely to get involved in cross-district remedies than those restricted to local district lines.

    According to one survey, about 200,000 children nationwide (fewer than 0.5 percent of all public schoolchildren) were participating in various interdistrict choice programs in 1993. Since this study, more states have enacted interdistrict choice schemes, and the opportunity generally has probably become more widely known. For example, in Iowa 2.6 percent of the public school pupil population was participating when the plan reached its seventh year of operation in 1996-97; Minnesota's grew from 1.2 percent in the first years to 2.3 percent; and Washington had 2 percent participating after four years. This is to be contrasted with a participation rate of less than 2 percent in states with such programs in 1993-94.

    One additional phenomenon worth attention is the giving of a false address. Some families either so much dislike their neighborhood public school or so prefer another public school, or both, that they pretend that their children are living other than where they really are. By providing school officials with a false address, they seek to gain admittance to a different school. This is a highly motivated form of school choice. Informal inquiries suggest to us that sometimes school districts are very casual about this matter, especially when the parents are jumping from one school to another within the district. Perhaps officials are happy that parents care so much; and in some cases officials may be eager not to have public attention drawn to the reasons that some parents are fleeing certain schools. Occasional news accounts suggest that other times school districts try to be very strict, especially when the false address is outside of the pupil's home district. Often money considerations lie behind this rigidity. Either a district does not want to lose its children to other districts because of the state funds it will forfeit, or the receiving district does not want to have to pay to educate the children from other districts even if it were to get some extra state funds for additional enrollees. Not surprisingly, there are no reliable data as to the number of families who exercise choice by giving false addresses. Washington, D.C., school officials have estimated that about 4,000 to 7,000 students (as much as one in ten) attending schools in the school system actually live in surrounding jurisdictions.

Charter Schools

Charter schools are the latest development in schools of choice, and at the moment, they are the most rapidly expanding form of school choice. These schools are deliberately designed to straddle the line traditionally distinguishing public from private schools. That is, they are officially public schools, but the charter concept envisions that they are to be quite independent in their management. (A great deal of attention is given to them in later chapters of this book.)

    In many states, public authorities may provide charters both to existing public schools (often termed conversion schools) and to new schools (often formed by entrepreneurs of various sorts). Charter schools receive public funding on a per student basis, are often responsible for achieving educational outcomes defined by their chartering body, and are subject to public oversight. Yet their charters are usually designed to exempt them from many of the rules and regulations that bind regular public schools to specific standards and procedures. States vary as to whether a would-be charter school is to seek its charter from the local district, a state agency, or either.

    Minnesota, the national leader in public school interdistrict choice, also took the lead in the charter school movement, enacting the first legislation in 1991. By July 1996, charter laws were in place in twenty-five states and the District of Columbia. As recently as 1993-94, however, there were only an estimated 32 charter schools actually in operation, all but 6 of them in California. By 1995-96 that number had increased to about 250, and in January 1997 there were 428 charter schools in operation nationwide. In the 1997-98 school year, it has been estimated that as many as 170,000 to 200,000 students attended about 700 charter schools. Going into the 1998-99 school year, Arizona, California, and Michigan together accounted for more than half of the nation's charter schools. At this rate of increase, charter schools could easily be serving more than a million pupils in the near future. Whether this growth rate can be sustained is another matter, however, and is explored in depth in Paul Hill's chapter in this book.

    So far, charter schools typically draw pupils from the district in which they are located, although some charter schools draw generally from the broader community, and this may be a growing phenomenon in the future. Generally speaking, charter schools admit on a first-come, first-served basis or by lottery, without giving preference based upon where pupils live. In this respect, charter schools are much like those magnet, alternative, and other such choice schools that many districts have been operating for years.

Private School Choice

Although there is a great deal of debate right now about voucher plans that would facilitate greater private school choice, nonpublic education has long been a matter of controversy.

    A Little History

    What we think of today as the Catholic school system came about because of Catholics' religious differences with Protestants, who effectively exercised political control over the public school system as it came into its own during the last half of the ninteenth century. Although the public schools in that era were not formally religious schools, Protestant prayers were usually said; Catholics created their own system as a way to preserve their religious identity. In later years, with even larger numbers of Catholic immigrants, the Catholic school system grew. Following World War I, however, the nativism movement that swept the country sought, among other things, to force all Catholic children into public schools by prohibiting families from sending their children to private schools. In two famous decisions from the 1920s, Pierce v. Society of Sisters and Meyer v. Nebraska, the U.S. Supreme Court struck down these controls on parents' rights to direct the education of their children. Families won the constitutional right to send their children to private schools, subject to the reasonable regulation of those schools by the state.

    Renewed controversies over the use of private schools broke out again in the late 1950s and early 1960s, as some southern families, seeking to avoid the requirements of Brown v. Board of Education, turned to private white academies to educate their children. Although the earlier Pierce decision ensured families the right to private schooling, the U.S. Supreme Court hemmed in these clearly racially motivated endeavors. First, the Court said that districts could not simply close down their public schools in order to avoid integrating them. Then it barred the payment of publicly funded tuition assistance to families attending the white academies. In 1976 it held that a post-Civil War era statute provided the legal grounds by which an African American child could successfully challenge a private school's racially discriminatory admissions policy, although it was never clear that anyone suing such a school would actually want to attend. Along the way, racially discriminatory private schools also lost their right to tax-exempt status.

    Attendance at private schools in the South has not become widespread: fewer than 10 percent of the pupils attend private schools in every southern state except Louisiana, which has a substantial Catholic population. Nonetheless, this experience with open racism in private education continues to make many people nervous about nonpublic schools. Indeed, racial, religious, and social class exclusivity—three things that private schools have stood for at various times in our history—are exactly what they see themselves as fighting against.

    Some Numbers

    About 5 million children, or around 10 percent of the approximately 50 million children in school, attend private schools; about 85 percent of these attend religious schools. In contrast to the past, however, Catholic schools are no longer as dominant. In 1970, about 70 percent of private schools were Catholic. In 1998 Catholic schools accounted for about half of private school pupils; other religious schools accounted for about 35 percent. The largest growth in private education over the past thirty years has been among conservative Christian schools, which enrolled around 14 percent of all private school pupils in 1995-96. Although only 15 percent of private school enrollment is in nonreligious schools, these get considerable attention in nearly every urban area because some of them are well patronized by elites. Some of these nonreligious, private schools specialize in the education of children with substantial disabilities (numbering perhaps 100,000).

    Most private school enrollment is, of course, the result of individual family decisions. There was a time when many families sent their children to private school essentially unthinkingly—that is, as though there really was no question (or choice) about it. Imagine Catholic families in certain Catholic neighborhoods where everyone used the local Catholic school. For such families, as a practical matter, having their children attend the local parish elementary school followed as directly from the family's place of residence as did local public school attendance follow for most non-Catholic families. Moreover, for many of those Catholic families it was by no means a deliberate choice to live in a particular place in order to enroll their children in a particular Catholic school. Today, however, it seems very much the case that the decision to sent one's children to a religious school is a deliberate one. In the early 1960s more than 40 percent of Catholic children attended Catholic schools (and surely the numbers were much higher in certain parishes), whereas by the early 1990s that proportion appears to have dropped to less than 20 percent.

Meet the Author

Stephen D. Sugarman is Agnes Roddy Robb Professor of Law at the University of California, Berkeley. Frank R. Kemerer is Regents Professor and director of the Center for the Study of Education Reform at the University of North Texas.

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