Private Choices, Public Consequences: Public Education and Feminist Legal Theory

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This article examines the nature of private choice in Zelman, using the lens provided by feminist legal theory and praxis. It argues that the rhetoric of private choice masks the fact that far too many low-income families lack meaningful decisional autonomy to ensure that their children get quality education.

To make this case, the article is divided into three parts. Part I discusses Zelman in greater detail, first examining the issue of public education reform as a matter for feminist concern and then exploring the troubling implications of the privatization of education embodied in the choice the Court upheld. This Part notes private choice must be interrogated carefully to ensure it does not reinforce the subordinating social order. Part II discusses feminist legal theory concerning decisional autonomy to identify principles that may be useful to effect social change in public education, and thus urges the recognition of a positive right to parental autonomy grounded in the Fourteenth Amendment and its roots in post-Reconstruction efforts to provide Blacks 8 agency with respect to their families. Part III then applies those principles to the context of Zelman to argue that, in light of the district's long history of discrimination - which it refused to remedy - the state had an affirmative obligation to provide parents with meaningful choices that dismantled the racially subordinating system of education. In failing to do so, the state unreasonably interfered with the Cleveland parents' positive right to make meaningful decisions concerning the education of their children.

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