would embrace them in jurisdictions where decisions could be made by referenda, but they were wrong. Referendum campaigns to initiate voucher programs in California, Michigan, and Utah failed by large margins.
Voucher programs also came up against resistance in the courts. There was a fierce fight to create vouchers for needy students in severely inadequate schools in Florida, but the results were disappointing both educationally and legally. Florida scholars report that “in the most segregated districts the failing (F) schools or near-failing (D) schools enroll the great majority of each district's Black students. ... However, few private schools have been willing to enroll students from the F schools.”64 This experience suggests that neither was there a good supply of options for the students—most of whom were black—in weak schools nor did all who were able to transfer find the choice a good one, since some quickly returned to public schools. The Florida Supreme Court ruled that the vouchers violated the state constitution, which forbade use of public funds for private schools, generating a battle to amend it.65 In Wisconsin, civil rights lawyers challenged a voucher program for discriminating against handicapped students.66 Voucher programs in general have faced problems because the schools were selecting students, not providing access to all equally, and recruitment and information requirements set by state law were minimal.
A major review of the evidence on vouchers by the economists Cecilia Elena Rouse and Lisa Barrow in 2008 concluded: “The best research to date finds relatively small achievement gains for students offered education vouchers, most of which are not statistically different from zero.”67
Vouchers have no real significance in terms of impact on either segregation or educational opportunity, as many schools will not take them.68 Further, many independent schools have tuitions far higher than the value of any proposed voucher. Even the theoretical value of voucher programs is limited because private schools educate only a tenth of U.S. students, and 82 percent of private school spaces are in religious schools created to provide appropriate religious education as well as regular instruction. This is unlikely to change, because the capital and other costs of creating large numbers of new schools are prohibitive.
So far U.S. voucher experiments have been limited, and there is no way to estimate what the impacts of a large expansion would be. Six significant programs have been initiated, but state courts overturned the Florida and Colorado laws, and Congress ended the Washington DC plan after Obama's election but reinstated it in 2011 as a part of a budget deal after conservatives took over the House of Representatives after the 2010 election. The best evidence on the possible impacts of large-scale voucher systems comes from countries that have experienced them, such as Chile and New Zealand. The experience of the former, which made a massive commitment to vouchers as a basic educational treatment, suggests that the impact would be to increase overall ethnic and class segregation.69 In fact there were massive student protests in Chile in 2011 against educational stratification.70
After the 2010 U.S. elections, with the victory of conservatives in the House and in many state governments, the voucher issue came back on the education agenda not only in the agreement to renew the Washington DC program but also in a referendum scheduled for 2012 in Florida, a battle in Pennsylvania, and a variety of other initiatives. Although vouchers have had little impact in the United States to date, the movement supporting them has deep roots in the Milton Friedman theory of choice and is likely to be a recurring, if marginal, discussion. The charter school surge, which in some cases included converting financially troubled religious schools to charters, has taken most of the attention off the voucher issue. The latter turned out to be a sideshow of little practical importance, but the arguments it developed, particularly the attacks on school bureaucracies and teacher organizations, have become central parts of the charter movement. The most influential book of the voucher movement, John E. Chubb and Terry M. Moe's Politics, Markets, and America's Schools, blamed a conspiracy of bureaucracies and teachers’ organizations for preserving the dysfunctional status quo, a theme echoed in a leading pro-charter book, Abigail and Stephan Thernstrom's No Excuses. The rhetoric of other pro-charter groups reflects this idea. The Walton Family Foundation (started by Helen Walton and her husband Sam, a Walmart cofounder), for example, which in 2010 gave $157 million to its education campaign focusing on charters, announced, “Our core strategy is to infuse competitive pressure into America's K-12 education system by increasing the quantity and quality of school choices available to parents, especially in low-income communities.”71
The Spectacular Inconsistency of the Law on Choice
Educational issues in the United States often become legal issues. In a society founded by lawyers that has extremely powerful courts and strong ideologies of rights, this is not surprising. The U.S. Supreme Court has, however, taken wildly inconsistent positions on school choice, which has often resulted in confusion and erratic policy and reflects the ideological and partisan divisions within the country. Following Brown, the Supreme Court passively accepted “freedom of choice” for more than a decade, though it left segregation virtually untouched. By the middle 1960s, as the 1964 Civil Rights Act and other sweeping reforms were enacted to bring the power of the executive branch into the enforcement of desegregation, federal education officials recognized that choice plans were putting all the burden of change on nonwhite families. So they wrote civil rights protections into choice plans, telling school authorities that they would only accept plans that produced rapid gains in integration. These policies, backed by Justice Department lawsuits and the withholding of federal school funds from defiant districts, rapidly accelerated desegregation. They required, among other things, that all students be given a very clear opportunity to transfer each year, that all requests for transfer that increased integration be granted, that transfers increasing segregation be prohibited, that free transportation to receiving schools be provided, and that students be treated fairly in their schools. These requirements became standard in desegregation plans for decades to come.72 Later, similar civil rights policies were central to the magnet school movement, which emerged as a way to voluntarily integrate urban schools.
Federal education and civil rights officials and the federal courts recognized that social pressure, harassment, and other factors often limited or blocked choice, which by itself fell far short of desegregating many schools that had always been operated on a discriminatory basis, including virtually all historically black schools. In a historic unanimous decision in 1968, Green v. New Kent County, the Supreme Court ruled that choice was not enough and that far-reaching mandatory measures were essential.
“Freedom of choice” ... is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If... it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a “unitary, nonracial system.” Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to ... fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.73
The court concluded that choice could be a constitutional remedy for illegal segregation only under circumstances in which it actually worked. When it failed, as it did in the vast majority of cases, it had to be replaced by mandatory policies that produced integrated schools. The court also held in Green that choice plans that increased segregation were illegal, which often became grounds for findings by federal courts that cities in the North and the West, such as Boston, Cleveland, and Indianapolis, were violating the Constitution and had to implement district-wide desegregation plans.74
This did not mean that choice could not be used in a positive fashion. Courts approved voluntary race-conscious plans using choice in school districts that were not under court orders. Some of the earliest magnet schools were created in university communities that were voluntarily desegregating in the 1960s. The
