After more than three decades of incremental victories, the tide has turned in the battle for parental choice in education. Since 2020, twelve states — Alabama, Arizona, Arkansas, Florida, Indiana, Iowa, Louisiana, North Carolina, Ohio, Oklahoma, Utah, and West Virginia — have expanded eligibility to participate in parental-choice programs to all or nearly all families. Most of these states embraced education-savings accounts (ESAs), an innovative model of choice that empowers parents to spend a portion of the public funding allocated for their children’s education on a range of qualified education expenses including (but not limited to) tuition at a private school. Indiana and Ohio expanded eligibility for school-voucher programs to all or most students. Oklahoma adopted a program of universal refundable tax credits for private-school tuition and homeschooling expenses. Several other states adopted targeted-choice programs benefiting low- and moderate-income students, students in failing school districts, or disabled students. All told, over 30 states now have one or more programs that allow some or all parents to put public funds toward educational options other than public schools.

While these developments are cause for celebration, in the fight for greater parental control over where, what, and how American children are taught, important battles lie ahead. If parental choice is to achieve its potential of transforming American education, school-choice supporters must be prepared for what’s coming.

Litigation. Most of these programs face legal hurdles. Currently, there are lawsuits challenging new parental-choice programs in several states, including Arkansas, Montana, South Carolina, and Tennessee. Long-standing programs are also being challenged years after being enacted. For example, over 100 school districts have challenged the constitutionality of Ohio’s voucher programs, despite the fact that these programs were upheld decades ago by both the Ohio supreme court and the U.S. Supreme Court. Earlier this year, the Wisconsin supreme court rejected a petition asking it to reconsider the constitutionality of the state’s voucher and charter-school programs.

In 2002, the U.S. Supreme Court rejected the claim that the First Amendment’s establishment clause prohibits the government from empowering parents to use public funds to send their children to private religious schools. Since then, legal challenges to parental-choice programs have shifted to state courts, with opponents arguing that such programs violate various state-constitutional provisions. Until recently, opponents argued that so-called Blaine amendments, state antiestablishment provisions that prohibit the public funding of religious or “sectarian” schools, preclude the public funding of religious schools. In a series of recent decisions, however, the Supreme Court rendered most Blaine amendments, with their well-established anti-Catholic pedigree, a dead letter. Trinity Lutheran Church v. Comer (2017), Espinoza v. Montana (2020), and Carson v. Makin (2022) make clear that the exclusion of religious schools from private-school-choice programs violates the First Amendment’s free-exercise clause (and also clarify that Blaine amendments cannot justify such religious discrimination).

A handful of state Blaine amendments, however, prohibit public funding of all private schools, religious or not. For example, the South Carolina supreme court is currently considering a lawsuit alleging that the state’s ESA program violates a provision of the state constitution that prohibits the state from directly funding any private school. These provisions, at least absent evidence of a discriminatory motive for their adoption (which is abundantly available in many states, including South Carolina), presumably are still enforceable. But this does not mean that parental choice is off the table in states with “religion neutral” Blaine amendments. That is because parental-choice programs fund students, not schools. Public funds flow to private schools only as the result of parents’ intervening choices among a range of options, including, in ESA states, options other than private schools.

Most lawsuits challenging parental-choice programs also allege that parental choice violates state-constitutional provisions requiring the establishment of public schools. These arguments come in two forms: The first argument is that such requirements preclude the provision of education by other means. The second argument, which features prominently in the current litigation challenging Ohio’s voucher programs, is that parental-choice programs unconstitutionally drain money from, and undermine the effectiveness of, public schools.

There is not much to be said about these arguments except that they are wrong. Parental-choice programs result in a loss of public funding for district schools only to the extent that districts no longer receive state funds allocated to students that they are no longer educating. Moreover, recent education reforms package parental choice with increases in public-school funding. As a result, when students take advantage of parental-choice resources, districts typically have more funding per pupil, not less. And the argument that parental choice undermines public-school effectiveness is simply not true. Studies have repeatedly demonstrated that competition improves, at least marginally, the academic performance of public-school students. Only one state’s supreme court has ever endorsed the argument that a parental-choice program runs afoul of a state education guarantee. That state, Florida, responded by adopting different funding mechanisms that have eluded judicial scrutiny. Florida now leads the nation in the number of students benefiting from parental choice.

Regulation. Legal battles over parental choice don’t all take place in courtrooms. When efforts to invalidate new programs fail, opponents inevitably seek to impose regulations on participating schools and families that may deter participation and undermine program effectiveness, often citing concerns about “accountability” and “nondiscrimination.” Of particular concern are regulations that burden religious liberty. In 2022, the Supreme Court held, in Carson v. Makin, that Maine’s exclusion of religious schools from a voucher program for students in rural school districts violated the free-exercise clause. In response, Maine imposed new regulations that prohibited participating schools from discriminating on the basis of (among other things) LGBT status and religion in both admissions and employment. The new regulations also — remarkably — require participating religious schools to accommodate dissent, including religious dissent, in the classroom. Even more remarkably, two federal judges recently rejected the argument that these regulations violate the free-exercise or free-speech rights of religious schools, reasoning that the burden on free expression and religious exercise is minimal and insufficiently weighty to overcome the state’s interest in nondiscrimination.

Two federal judges reached the opposite conclusion about similar regulations imposed on religious providers participating in Colorado’s universal-pre-K program. These regulations prohibit participants from preferring coreligionists in most cases and restrict their ability to convey certain beliefs about, among other things, human sexuality. Both judges concluded that these regulations discriminated against religious providers and restricted their free-exercise and free-speech rights.

These examples, however troubling, are outliers. Most parental-choice regulations have been relatively light-touch and respectful of participating schools’ autonomy and religious liberty. But even regulations that do not raise religious-liberty concerns may impede the effective implementation of parental-choice programs. For example, most (but not all) programs require participating schools to administer some standardized tests but do not require them to use the state assessment required by regulations governing district and charter schools. This makes sense because private schools have historically not administered state tests (or adhered to the state curricular standards on which these tests are based). Most programs also allow participating schools to set their own admissions standards. There is some evidence, particularly from Louisiana, that limiting control over student assessment and admissions can deter the participation of higher-performing private schools. Rigid testing requirements, in particular, can scare away homeschooling families — long wary of government interference — from ESA programs that encourage customized education. Promisingly, the trend has been toward less regulation, not more. For example, when Louisiana replaced its means-tested voucher program with a universal ESA program earlier this year, it granted participating schools greater autonomy over student assessment and admissions.

Other, seemingly mundane regulations can limit the kinds of educational innovations critical to the success of ESA programs in particular. Zoning regulations, for example, have been deployed to block “micro-schools” with as few as four students from operating in residential or commercial structures. Choice-friendly state governments have begun to address these issues. Both Utah and Florida recently passed legislation preventing local governments from wielding land-use restrictions to preclude the operation of micro-schools and learning pods. (These developments, not surprisingly, have provoked outrage in some quarters, leading to op-eds comically warning that students may soon be attending school in food trucks.)

Innovation. Proponents of parental choice, myself included, have historically engaged in what might be characterized as irrationally exuberant thinking about its benefits, expecting and promising that choice will prove a magic bullet for all our nation’s education woes. If the nearly 35 years since Wisconsin adopted the first modern private-school-choice program have demonstrated anything, it is that this thinking is wrong. Empirical studies have demonstrated, in most cases, positive but marginal academic benefits of participating in a private-school-choice program, with a handful of studies suggesting that participants lost ground vis-à-vis their public-school peers. Studies of the long-term effects of participation on life outcomes (high-school and college graduation, employment, marriage, etc.) have been overwhelmingly positive.

Choice is not a panacea. It is hard work. If the movement is to succeed, parental choice must lead to the proliferation of more and better educational options that transform the lives of participating children. It is not enough to simply fill empty seats in existing private schools. Rather, choice must stimulate educational innovations in these schools — and in fact, it already has. After eligibility for Arizona’s ESA program became universal, the highly successful Great Hearts Academies charter network decided to start a new network of private classical Christian schools to serve ESA participants. In Wisconsin and Ohio, the states with the longest history of private-school choice, networks of religious schools have emerged that serve low-income students. And in Arizona and Florida, the two states with the highest number of parental-choice participants, micro-schools and learning pods are proliferating and flourishing.

Innovation is particularly important in states with ESA programs that enable parents to embrace the challenge of customizing their children’s education à la carte among a variety of educational providers. I have long assumed that the appeal of unbundled education will be limited — I find the idea of customizing my own children’s education daunting, and my husband and I are both law professors. But increasing numbers of parents are embracing the challenge, and nonprofit organizations have emerged to help them navigate the many options available for their children’s unique educational needs.

Resistance. Recent parental-choice victories result from a variety of factors, significant among them parents’ frustration over school closures during the pandemic and opposition to “woke” curricula in public schools. While these factors may have enabled legislative victories securing choice, opponents of parental choice will not take their defeats lying down. Those who think otherwise would do well to study what these forces have done in recent years to suppress and enfeeble the once ascendant charter-school movement.

In the minds of the public-school establishment, children belong in (and to) traditional public schools, and any policy that upsets that long-standing equilibrium is not just wrongheaded but evil. Case in point: An article in my local paper, in South Bend, Ind., recently bemoaned the fact that, thanks to the choices available to them, over 40 percent of the city’s children did not attend schools operated by the South Bend Community School Corporation — the clear implication being that these children had somehow been stolen from the district by other schools rather than directed elsewhere by parents seeking the best opportunities for their children.

Not surprisingly, when in power, opponents of parental choice prioritize efforts to curtail it. A few recent examples: The Illinois legislature, under intense pressure from the teachers’ unions, allowed a modest tax-credit-scholarship program serving disadvantaged children to sunset, resulting in thousands of children losing their scholarships. Pennsylvania governor Josh Shapiro vetoed legislation establishing a means-tested voucher program — which he had publicly supported — in order to secure the passage of a larger education-reform package. In Texas, Governor Greg Abbott’s ambitious proposal for universal parental choice failed as a result of opposition from rural Republicans backed by public-school interests. Arizona governor Katie Hobbs has mounted several efforts to scale back the recent expansion of the state’s ESA program (with the latest salvo being restrictions imposed on the range of educational expenses eligible for reimbursement).

Opponents also may seek to take advantage of direct-democracy mechanisms, available in many states, to block choice programs. For example, the expansion of Arizona’s ESA program was temporarily put on hold several years ago after opponents claimed — falsely — that they had secured enough signatures to place a referendum on the program on the ballot in an upcoming election. Ongoing efforts to repeal legislation establishing choice programs are under way in several other states.

All this said, while public-school opposition to choice may be inevitable, competition also can have salutary effects. In Utah, several large school districts have opted to offer à la carte courses to students with ESA funding. And, again in my hometown, Indiana’s expansion of its voucher program to near-universal eligibility coincided with a proliferation of billboards seeking to woo students to local school districts, a move made possible by the fact that Indiana also allows for universal public-school choice.

Expansion. The recent expansion of parental choice has occurred primarily in red states, especially in the South. There is, to be sure, room for expansion in other red states, including, importantly, Texas, where most of the Republican legislators who voted against Governor Abbott’s ESA proposal were unseated in recent primary elections. More-modest choice programs targeting low-income or disabled children in many other red states are also ripe for expansion.

But, eventually, advocates seeking to expand the reach of parental choice will hit the Blue Wall. As was recently demonstrated in Pennsylvania, expansive parental choice may struggle to gain a foothold in Democratic-controlled states (although some of them, including Pennsylvania, do already have more-modest tax-credit-funded choice programs). We can only hope that the success of parental-choice programs eventually will shame these states into embracing educational opportunity. But advocates at some point in the not-too-distant future will have to decide whether to aggressively advance their cause in hostile territory or double down on ensuring the success of existing programs. The latter may prove more prudent and productive.

Milton Friedman, the godfather of the modern parental-choice movement, argued in 2005, just a year before his death, that, despite their many advantages for lucky beneficiaries, incremental parental-choice policies “could not provide the kind of market needed to stimulate innovative experimentation.” He also predicted that “sooner or later, there will be a breakthrough; we shall get a universal voucher plan in one or more states. When we do, a competitive private educational market serving parents who are free to choose the school they believe best for each child will demonstrate how it can revolutionize schooling.” Nearly 20 years later, Friedman’s predicted “breakthrough” has occurred in a dozen states. The realization of his second prediction is within reach, but only if we are willing to fight for it.