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Sector Agnosticism and the Coming Transformation of Education Law

Posted by on Friday, January 27, 2017 in Articles, Volume 70, Volume 70, Number 1.

Sector Agnosticism and the Coming Transformation of Education Law


Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private school choice devices like vouchers, tax credits, and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. As a result, millions of American children now attend privately operated, publicly funded schools. This rise in a “sector agnostic” education policy has profound implications for the state and federal constitutional law of education because it blurs the distinction between charter and private schools. This Article explores three of the most significant of these implications.


John P. Murphy Foundation Professor of Law, University of Notre Dame.