Last week, at the Education Law Prof Blog, Derek Black, a professor at the University of South Carolina School of Law, posted a short summary of his new paper to be published soon in the Cornell Law Review. The paper presents new and, I hope, promising thinking about legally challenging charter schools and private school tuition voucher programs under the fifty state constitutions.
Black is an academic, not a litigator, and he is realistic. He devotes the last section of his paper to some of the challenges that will likely arise if his ideas become the basis for actual litigation. Nonetheless, given the failure of previous attempts to challenge school privatization, Black argues for significant reframing: “The question now is whether the constitutional debate over school choice can be reframed from one premised on an all-or-nothing approach to a more nuanced one that relates to how choice programs…
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