Hastings Law Journal


Stuart Biegel


Support for public school choice programs has grown significantly throughout the 1990s. The ideal of school choice envisions a world where families are no longer restricted to public schools in their designated districts, instead choosing from a wide range of schools in a large geographic area. However, a detailed examination of school choice reveals that many of the largest and most wide-ranging plans significantly infringe upon the equal educational opportunity rights of minority students and students from low income families. Two significant barriers are likely to impede the equal access rights of such students: transportation requirements and restrictive admissions practices.

In this article, Professor Biegel analyzes potential legal challenges to school choice proposals under Title VI of the Civil Rights Act of 1964. Professor Biegel begins by outlining the basic equity protections of Title VI through the application of the disparate impact model in an education context. Professor Biegel then applies this model to school choice policy and pinpoints key areas in which current school choice proposals might be vulnerable to attack under a Title VI disparate impact analysis.

Professor Biegel sets forth a framework of protective measures that would not only insulate school choice programs from major civil rights litigation, but which would also help maximize equal educational opportunity. Professor Biegel recommends providing reasonable transportation costs for families below the poverty line or living in distant locations and prohibiting admissions committees from making decisions solely on standardized test scores and previous academic performance. Professor Biegel concludes that school choice proposals which are accompanied by appropriate statutory protections and linked to the policy reform efforts of the nation's best educators will be those which best serve America's students.

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