Yet today’s Democratic Party is passionately opposed to school choice. The reasons are simple: teachers unions massively fund the Democratic Party and provide many of its hardest working foot soldiers. As a result, very few Democratic politicians are willing to give up the millions of dollars that flow from union support.
In a just world, teachers unions would enthusiastically support school choice. After all, the vast majority of teachers go into education because they want to help children, and teachers see firsthand the maddening bureaucracy, red tape, and barriers to quality teaching that today’s system often creates. But the union bosses who lead the teachers unions have decided that school choice is an existential threat to their power, and so they demand partisan fealty above all.
I became active in the school-choice movement twenty-five years ago. When I had just finished my clerkship at the Court, the Federalist Society (a national organization of conservative and libertarian students, lawyers, professors, and judges) asked me to serve as the first-ever chairman of their school choice and education reform committee. I agreed, but with one caveat: although I was passionate on the issue, I didn’t yet have a demonstrated record, so I told them I needed a co-chair. I signed on alongside my friend Nicole Garnett, who was then a lawyer for the Institute for Justice, a libertarian non-profit law firm that was litigating many of the school-choice cases across the country.
Nicole and I became the first two co-chairs, and then, when she went to be a law clerk for Justice Clarence Thomas, she stepped down and was replaced by her husband Rick Garnett, who had been my co-clerk with the Chief. Both Nicole and Rick are amazing, and today they’re both law professors at Notre Dame.
In the late 90s, we hosted a national school-choice conference in Ohio, which was ground zero for school-choice battles at the time. We brought in conservatives and even some liberals to consider and debate the key issues of choice.
Shortly thereafter, I was invited to speak to the national convention of the ACLU. You read that right. In 1999, long before I had been elected to anything, the ACLU asked me to participate in an hour-and-a-half-long one-on-one debate on school choice before their national convention in San Diego. My opponent was liberal columnist Juan Williams, and the supposed “neutral” moderator was Barry Lynn, head of Americans United for Separation of Church and State.
It remains the most hostile audience I’ve ever addressed. But, I hope, in the course of the debate, at least some of the arguments I presented made them think. The one argument that seemed to resonate even slightly was the following: “The ACLU has a long and venerable history of standing up to paternalism, to government making decisions for you the individual. Survey after survey of African-American and Hispanic parents show overwhelming support—60 percent, 70 percent, or more—for school choice. Why do you, the ACLU, feel so comfortable substituting your own paternalistic view for their own view of what’s best for their children?”
In the 90s, the main policy argument against choice was that allowing some students to receive scholarships to private schools would destroy the public schools. At the time, choice programs were nascent, so that argument had theoretical plausibility. And, had it been true, it would have been a compelling reason to oppose choice; the public schools are and will remain the backbone of our education system for the vast majority of children.
But now, as dozens of jurisdictions across the country have implemented various forms of school choice, we know three facts empirically: (1) Kids and parents in failing schools desperately want out, as choice programs are regularly over-subscribed by large margins. (2) Kids who exercise choice predictably do better, achieving better reading and math scores and much better rates of college admission. And (3) the data demonstrate conclusively that not only does choice not harm the public schools, it actually helps the public schools because the competition improves the quality of education for the kids who stay in the public school.
This third point is foundational. Before I was Texas solicitor general, from 2001–03 in the Bush administration, I was the head of policy planning at the Federal Trade Commission. The FTC’s statutory mission is to protect consumers and to promote competition. Roughly seventy-five Ph.D. economists work at the FTC, and I asked two of them to study in depth the impact of competition on education. In particular, I asked them to take seriously the argument that school choice harms public schools and to examine the data. They framed the question more generally, as economists are wont to do: “What is the impact on a regulated monopoly when competition is introduced, and, specifically, what is the impact on quality for those who remain with the incumbent providers?”
They published the results in a formal FTC report. First, they looked to several other industries, previously oligopolies, where competition had been introduced: surface freight transportation, telecommunications, and air transportation. Not surprisingly, their empirical examination found that competition was good; in all three, quality increased for those customers who never switched to the new providers.
Then, they examined every empirical study that had been done on school-choice programs. The data from those were entirely consistent: when students trapped in failing schools are given options, it helps those students and, overall, it helps the public schools.
As of today, EdChoice, a leading national school-choice advocacy organization, observed the following: “Of the 26 studies that examine the competitive effects of school choice programs on public schools, 24 found positive effects, one saw no visible effect and one found some negative effects for some kids.”
And for many children,
