Heise, Michael, Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals (November 1, 2014). Available for download at SSRN: http://ssrn.com/abstract=2554070

“Professor Julie Mead considers whether publicly funded voucher programs “subvert” states’ ability to provide an “adequate” public education consistent with state constitutional requirements. The critical analytic move in Mead’s paper involves characterizing publicly funded voucher programs as a “discretionary option” and, in contrast, a state’s duty to adequately fund traditional public schools as a state constitutional “obligation.” Mead then argues that the growth in the number of publicly funded voucher programs and the accelerating participation rates in those programs threaten to dilute states’ abilities to meet their constitutional obligations owed to traditional public schools. Paradoxically, then, it is the interaction of voucher programs’ increased popularity and states’ increased willingness to fund them that Mead exploits to support her conclusion that: “[s]tate constitutions have clearly established that children have a genuine right to a quality education, not merely the privilege to shop for schooling in the educational marketplace.” This response analyzes Mead’s argument.”