Privileges and Immunities, Public Education, and the Case for Public School Choice

Abstract

The Supreme Court’s decision in McDonald v. Chicago has generated a great deal of debate over the Fourteenth Amendment Privileges or Immunities Clause and the manner in which constitutional rights should be incorporated to apply against the states. One by-product of that debate has been a rise in scholarly attention to the Article IV Privileges and Immunities Clause insofar as the Article IV Clause may be viewed as the constitutional predecessor of – and a source of interpretive meaning for – its Fourteenth Amendment cousin. Lost amidst the rekindled interest in the Article IV Clause as an interpretive signpost, however, is the fact that it, too, is capable of serving as a fount for important individual rights.

This article considers one such right that has yet to be litigated but to which public attention has grown in recent years: access to public school choice. For ages, the conventional wisdom on public schooling has casually accepted that a school district should be free to turn away students who live outside of the district’s geographic borders at the district’s complete discretion. This article examines how and why school districts across the nation persist in the practice of closed enrollment, despite claims to the contrary made by some school officials and lawmakers. I explain how the widespread existence of exclusive school district boundaries fundamentally undermines parental liberty, educational efficiency, and equality of opportunity by relegating millions of disadvantaged children to the worst schools in the nation, even as substantially better public schools exist often minutes away across town lines.

But there is reason for hope. Litigation brought under the Article IV Privileges and Immunities Clause can compel local school districts to enroll non-resident transfer students under proper conditions. Such litigation, I argue, has the potential to provoke a dramatic reconsideration of the power that public schools have to refuse to educate certain children on the basis of residency – and the potential to help usher in a long overdue era of meaningful educational opportunity.