Over the past several years, the landscape of K–12 education policy has shifted dramatically, thanks in part to increasing prevalence of parental-choice policies, including intra- and inter-district public school choice, charter schools, and private-school choice policies like vouchers and (most recently) universal education savings accounts. These policies decouple property and education by delinking students’ educational options from their residential addresses. The wisdom and efficacy of parental choice as education policy is hotly debated, including among contributors to this Symposium. This Essay takes a step back from these education-policy debates and examines the underappreciated fact that de-coupling property and education also advances at least three economic development goals. First, they decrease incentives for center-city residents to move from urban neighborhoods to suburban ones in order to secure space for their children in higher-performing suburban public schools. Second, they reduce the likelihood that urban Catholic and other faith-based schools will close, thereby stabilizing important neighborhood community institutions. Third, they lessen legal and economic barriers to mobility between municipalities within metropolitan regions, including exclusionary zoning, thereby addressing the persistent challenge of intrametropolitan economic inequality.

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Until relatively recently, property and education were inextricably linked because students’ publicly funded education options were limited to the district public school assigned to them by virtue of their residential address. Parents—or at least parents with the financial means to do so—“chose” their children’s schools by either moving or paying tuition at a private school. Over the last several decades, however, this has changed. A majority of states have now enacted (to varying degrees) policies embracing educational choice for parents by funding a variety of educational options both within and outside of the traditional public school system, including charter schools, private-school-choice programs, and open enrollment for district public schools. Debates about the wisdom and efficacy of these parental-choice policies are intense and far ranging, including among the contributors to this Symposium, as are debates about the appropriate scope of school-choice policies. Some argue that public education expenditures should be concentrated on traditional (district) public schools; 1 See, e.g., Erika K. Wilson, Charters, Markets, and Universalism, 26 Geo. J. on Poverty L. & Pol’y 291, 306–10 (2019) [hereinafter Wilson, Charters, Markets, and Universalism] (“Despite charter schools’ potential to take advantage of . . . universalist solutions, they often fall short . . . because race within the context of a market for public education creates sub-optimal market conditions and leads to a collective action problem.”); Zachary Jason, The Battle Over Charter Schools, Harv. Ed. Mag., Summer 2017, at 22, 26 [] (“The top criticism of charters is that they rob funding from district schools.”); End Federal Funding for Corporate Charter Schools, Nat’l Educ. Ass’n (Apr. 7, 2022), [] (criticizing charter schools for undermining “local public schools and communities” and “taking taxpayer money with no oversight or any overall increase in student learning and growth”); Kimberly Hefling, NAACP President Tackles Charter School Question, Politico (July 12, 2018), [] (discussing the NAACP’s 2016 resolution “that called for a moratorium on the expansion of charter schools until there was more accountability and transparency in their operations”). others would limit parents’ choices to district and charter schools; 2 See, e.g., Nicole Stelle Garnett, Are Charters Enough Choice? School Choice and the Future of Catholic Schools, 87 Notre Dame L. Rev. 1891, 1904–07 (2012) [hereinafter Garnett, Enough Choice?] (reviewing scholarship and highlighting that “private-school choice is intensely controversial” while “charter schools enjoy broad, bi-partisan political support”); Andrea Gabor, Opinion, These Ways to Cool the Charter-School Wars Probably Won’t, Bloomberg (May 21, 2022), (on file with the Columbia Law Review) (noting that advocates argue that the public-school system is “essential for democracy” while privatization may “undermine public schools”); Mona Vakilifathi, How Democrats Can Compromise on Charter Schools to Benefit All Students, Brookings Inst.: Brown Ctr. Chalkboard (Aug. 27, 2020), []. and still others support private-school-choice programs that enable parents to use public funds to send their children to private and faith-based schools (in addition to choices among district and charter schools). 3 See, e.g., Alina Adams, Opinion, Adams: Public Funds for Religious Schools? It’s Been Happening in NYC for Years, The74 (July 11, 2022), [] (reporting on New York City’s allocation of public funds to religious schools and faith-based day care centers). Wherever one falls in these debates, there is no question that the American educational landscape has shifted dramatically in the past several decades, thanks in large part to the expansion of policies expanding the publicly funded educational options available to students. 4 See Garnett, Enough Choice?, supra note 2, at 1904–07.

My maximalist views on parental choice as education policy are well established, 5 See, e.g., Garnett, Enough Choice?, supra note 2, at 1894. and it is not the purpose of this Essay to rehash them here. Rather, the purpose of this Essay is to discuss the underappreciated fact that parental choice advances both economic development and education policy goals. This is because parental-choice policies decouple property and education by unlinking students’ educational options from their residential addresses. By decoupling property and education, parental-choice policies serve at least three economic development functions: First, they reduce incentives for center-city residents to move from urban neighborhoods to suburban ones in order to secure space for their children in higher-performing suburban public schools. 6 See infra note 124 and accompanying text. Second, they reduce the likelihood that urban Catholic schools will close by leveling the competitive playing field between low-cost urban private schools, which must charge tuition, and district- and charter-school options, which are tuition free. This leveling is important because, as my previous work with Professor Margaret Brinig demonstrates, Catholic schools—which are rapidly disappearing from urban neighborhoods—are important, stabilizing community institutions in urban neighborhoods. 7 See Margaret F. Brinig & Nicole Stelle Garnett, Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America 9–75 (2014) [hereinafter Brinig & Garnett, Lost Classroom, Lost Community]; infra section II.B. Third, these policies help reduce legal and economic barriers to mobility between municipalities within metropolitan regions, thereby addressing the persistent challenge of intrametropolitan economic inequality. 8 See infra section II.C.

It is important to note that, while all parental-choice policies decouple property and education to some extent, these economic development effects are likely to be greatest for universal parental-choice policies that maximally delink residential address and educational options by permitting parents to use public funds to send their children to the district, charter, or private school of their choice. In July 2022, Arizona became the first state to embrace universal parental choice—that is, to give parents the option of using some of the public funds allocated for their children’s education at district, private, and charter schools—when it enacted legislation that expanded access to the Arizona’s Empowerment Scholarship Account (ESA) program to all K–12 students. 9 Empowerment Scholarship Account (ESA) Program, Ariz. Dep’t of Educ., [] (last updated Feb. 27, 2023). Beginning in September 2022, every child became eligible to receive approximately $7,000 in public funds to spend on a wide array of educational expenses, including private-school tuition, “microschooling,” 10 Andrew Bauld, What Is a Microschool? U.S. News & World Rep. (Apr. 7, 2022), (on file with the Columbia Law Review) (describing a microschool as a “modern-day one-room schoolhouse” featuring “personalized, student-centered learning and multiple age groups in the same classroom”). online courses, tutoring, textbooks, educational therapies, and curricular materials for homeschooling. 11 Ariz. Dep’t of Education, supra note 9. Even before this legislation, Arizona offered students the option of enrolling in any public district school in the state (if space was available) or one of over 500 charter schools. 12 Nicole Stelle Garnett, A Radical Step in the Right Direction, City J. (Oct. 2, 2022), []. Arizona also has three programs granting tax credits for donations to organizations funding private-school scholarships. 13 School Choice in Arizona, EdChoice, [] (last visited Jan. 7, 2023).

A few days after the ESA expansion took effect in Arizona, West Virginia became the second state with universal parental choice when the state supreme court rejected a state constitutional challenge to a similar ESA program, which was enacted in 2021 but was on hold due to litigation. 14 Andrew Handel & Rose Laoutaris, Victory for West Virginia Families: Historic Education Opportunity Program Declared Constitutional, Am. Legis. Exch. Council (Oct. 10, 2022), []. In 2023, Arkansas, Florida, Iowa, and Utah followed suit, enacting universal education savings account programs, 15 Stephen Gruber-Miller & Katie Akin, Jubilant Kim Reynolds Signs Iowa’s Seismic ‘School Choice’ Bill Into Law. What It Means:, Des Moines Register (Jan. 24, 2023), [] (last updated Jan. 25, 2023); Andrew Handel, Utah Parents and Students Celebrate Passage of Universal Education Savings Accounts, Am. Legis. Exch. Council (Jan. 30, 2023), []; Jeremiah Poff, Florida Legislature Sends Universal School Choice Bill to DeSantis’s Desk, Wash. Exam’r (Mar. 23, 2023), []; Brett Rains, Arkansas Gov. Sarah Huckabee Sanders Signs Education Bill Into Law, 40-29 News (Mar. 8, 2023), [] (last updated Mar. 9, 2023). and Oklahoma adopted a universal refundable tuition tax credit. 16 Ben Felder, Governor Signs Private- And Home-School Tax Credit Bill, One of His Top Priorities., Oklahoman (May 25, 2023), [] Like Arizona, Arkansas, Florida, Iowa, and Utah also have unrestricted open-enrollment policies for district public schools and charter schools. 17 Arkansas School Choice Roadmap, Nat’l Sch. Choice Wk., [] (last updated Apr. 6, 2023); Florida School Choice Roadmap, Nat’l Sch. Choice Wk., [] (last updated Jan. 19, 2023); Iowa School Choice Roadmap, Nat’l Sch. Choice Wk., [] (last updated Jan. 24, 2023); Utah School Choice Roadmap, Nat’l Sch. Choice Wk., [] (last updated Jan. 28, 2023). West Virginia also authorizes both open-enrollment policies and charter schools, but the state currently caps the number of charter schools at ten and allows districts to set their own open-enrollment policies. 18 West Virginia School Choice Roadmap, Nat’l Sch. Choice Wk., [] (last updated Jan. 19, 2023); see also Liz McCormick, All 5 W.Va. Public Charter Schools on Track to Open in Fall 2022, W. Va. Pub. Broad. (Apr. 22, 2022), []; Timothy Sandefur, Goldwater Stands Up for West Virginia Families, Goldwater Inst. (Sept. 6, 2022), [].

Although the recent embrace by six states of universal parental choice reflects, in many ways, a seismic shift in education policy, momentum for parental choice has been building for decades. Thirty states, the District of Columbia, and Puerto Rico have one or more private-school-choice programs, 19 School Choice in America, Am. Fed’n for Child., [] (last visited Apr. 9, 2023) [hereinafter Am. Fed’n for Child., School Choice]. which collectively enabled 700,000 children to attend a private school during the 2021–2022 school year. 20 Our Impact Across America, Am. Fed’n for Child., [] [hereinafter Am. Fed’n for Child., Our Impact Across America] (last visited Jan. 7, 2023). Moreover, while 2023 may yet eclipse it, 2021 was the most successful year in private-school-choice history: That year, more than two dozen states enacted, improved, or expanded choice programs, and several states—including Indiana, Ohio, and Wisconsin—opened participation in school voucher programs to a large proportion of K–12 students. 21 Id.; Am. Fed’n for Child., School Choice, supra note 19. And several recently elected governors have made universal private school choice a legislative priority. 22 See, e.g., Press Release, Off. of Governor Brad Little, Gov. Little Rolls Out ‘Idaho First’ Plan to Support Schools, Provide Property Tax Relief, Fight Fentanyl in 2023 State of the State and Budget Address (Jan. 9, 2023), []; Talk Bus. & Pol. Staff, Arkansas Gov.-Elect Sanders Lays Out Education, Criminal Justice Road Map, KUAR (Jan. 9, 2023), []; Supporting Every Student’s Success at School, Off. of the Governor of Iowa Kim Reynolds, [] (last visited Feb. 2, 2023). Public-school-choice policies are even more widespread. Currently, forty-five states authorize charter schools, which now educate over seven percent of all public-school students. 23 Jamison White, 1. How Many Charter Schools and Students Are There?, Nat’l All. for Pub. Charter Schs. (Dec. 6, 2022), []. From 2019 to 2020, nearly 3.5 million students attended one of 7,700 charter schools in the United States. 24 Charter School Data Dashboard, Nat’l All. for Pub. Charter Schs., [] [hereinafter Charter School Data Dashboard] (last visited Jan. 7, 2023). Finally, many states and school districts offer parents the option of enrolling their children in a district public school other than the one assigned to them by virtue of their residence, sometimes as a matter of right. 25 See infra note 49 and accompanying text. This Essay, refers to traditional public schools as “district schools” or “district public schools” in order to distinguish them from charter schools, which all charter school laws also designate as “public schools.” Elsewhere, I have argued that charter schools in many states should be considered private schools for federal constitutional purposes, but this question is beyond the scope of this Essay. Nicole Stelle Garnett, Manhattan Inst., Religious Charter Schools: Legally Permissible? Constitutionally Required? 8–10 (2020),
sites/default/files/religious-charter-schools-legally-permissible-NSG.pdf [
BV3C-MX7P] [hereinafter Garnett, Religious Charter Schools].

This Essay is organized as follows: Part I describes the current land-scape of parental-choice policies that decouple property and education. These policies, which are embraced to varying degrees in different states, include: (1) in a number of states, open-enrollment policies that give par-ents the option of sending their children to district public schools other than the one geographically assigned to them, including—in some cases—any school with available space in any school district in the state; (2) in forty-five states, charter schools, which are privately operated but publicly funded and called “public schools” in all state laws; (3) in thirty states, private-school-choice mechanisms that enable students to use public funds to attend a private school (or home school). Part II then discusses benefits of decoupling property and education for both central cities and the overall economic health of American metropolitan areas. These include: (1) reducing a major incentive that parents of school-age children have for living in suburbs rather than central cities—namely, the relative academic performance of district public schooling options; 26 See infra section II.A. (2) helping to stem the tide of urban Catholic school closures, thereby preserving important stabilizing community institutions in urban neighborhoods; and (3) addressing economic inequity within metropolitan areas by reducing suburbs’ incentives to erect barriers to intrametropolitan mobility, including exclusionary zoning policies.

The Essay concludes with some tentative observations about the implications of decoupling property and education for future developments in education law. In particular, these developments further undermine the factual predicates behind so-called “school funding equity litigation,” which seeks to leverage state constitutional provisions guaranteeing a right to education to secure more funding for district public schools in high-poverty communities. 27 See Katharine Bohrs, COVID-19 Brings School Funding Inequities and Litigation Front and Center, Harv. C.R.-C.L. L. Rev. Amicus Blog (Nov. 5, 2020), [] (“An equity argument can be brought under either the state’s equal protection clause or its education clause, and alleges that the state is failing to provide funding in an equitable way across or within districts.”); infra note 199 and accompanying text. As a number of commentators have noted, judicial decisions invalidating public education funding systems on state-constitutional grounds are predicated on somewhat-outdated assumptions about an increasingly tenuous connection between local property taxes and public school resources. 28 See infra note 215 and accompanying text. By decoupling property and education, parental-choice policies further increase the tensions between the prevailing theory of these funding equity cases and the on-the-ground reality of education finance in many states.

This is an opportune time to consider the economic development benefits of decoupling property and education. Many cities continue to struggle to recover economically from the COVID-19 pandemic, which appears to have permanently and dramatically restructured the nature of work for many Americans. 29 See, e.g., Roland Li, Downtown S.F. Still Has North America’s Weakest Pandemic Recovery, S.F. Chron. (Jan. 18, 2023), [] (last updated Jan. 20, 2023); Jimmy Vielkind, New York Panel Unveils New Vision to Revive Manhattan, Wall St. J. (Dec. 14, 2022), (on file with the Columbia Law Review). The availability of remote work has reduced a major incentive for professionals to live in urban neighborhoods—proximity to their offices—thereby increasing the risk of financial crisis for center cities. 30 See infra notes 104–108 and accompanying text. At the same time, serious crime appears to be on the rise in urban centers, 31 Alexandra Thompson & Susannah N. Tapp, Bureau of Just. Stat., DOJ, NCJ 305101, Criminal Victimization, 2021, at 8 (2022), [] (“From 2020 to 2021, the rate of violent victimization in urban areas rose from 19.0 to 24.5 victimizations per 1,000 persons . . . .”). increasing the need for stabilizing urban community institutions like Catholic schools and more residential mobility options for low-income and minority residents in metropolitan areas who are all too often priced out of suburban communities by exclusionary zoning policies motivated, in part, by a desire to preserve elite school district status. 32 See Vanessa Brown Calder, U.S. Cong., Joint Econ. Comm., SCP Rep. No. 6-19, Zoned Out: How School and Residential Zoning Limit Educational Opportunity 7–8 (Nov. 12, 2019), [] (detailing Portland zoning policies that segregate housing by income and “likely drive[] inter-district segregation”).