Conference 2007: “Educational Choice: Emerging Legal and Policy Issues”

BYU Law Review Volume 2008, No. 2

Descriptive Essay by David M. Kirkham

In Fall 2007, in light of Utah’s then-proposed “school voucher” program, the J. Reuben Clark Law School, McKay School of Education, and the International Center for Law and Religion Studies at Brigham Young University brought together on the BYU campus eminent academic and policy experts from around the United States to address the constitutional, legal and societal implications of educational choice. Nationally unprecedented in its scope, Utah’s voucher proposal would have allowed unusual breadth to Utah parents and guardians to choose their children’s school, public or private, with a state subsidy to help cover tuition. Inspired by the BYU conference and as a result of the ongoing interest in school choice programs in the United States, the Brigham Young University Law Review has devoted an issue to the subject, published as the second 2008 issue of the Review.

The Utah voucher initiative gained national attention for its breadth and, some would say, audacity. In February 2007, the state legislature had passed two educational-choice bills, which promised the vouchers-for-private-schools program. Passage of these bills created a furor and debate throughout the state over educational values and priorities. Threats of judicial challenges to the voucher laws were tempered and delayed by the state attorney general’s reading that they would likely pass state constitutional muster and by the lieutenant governor’s determination in April 2007 that voucher opponents had gathered sufficient signatures on a petition to require a referendum on the question. In November 2007 in that referendum Utahans voted down the voucher legislation. The record of the debate, however, remains perhaps the best collection of arguments anywhere, relevant to similar initiatives that continue to be heard around the United States. These articles will continue to help frame the national discourse and encourage parties on all sides of the voucher issue to promote programs that would meet the highest demands of the law and public interest.

The Law Review editors have included a wide range of opinions on the validity and value of school vouchers, pro and con. Most, but not all of the authors, are lawyers. Those who are not address, nonetheless, the implications of school-choice law for American political, social, and educational institutions. Authors include Olene Walker, former Governor of the State of Utah; William W. Bassett, Professor of Law, University of San Francisco School of Law; Douglas Laycock, Yale Kamisar Collegiate Professor of Law, University of Michigan; Steven K. Green, Professor of Law and Director, Willamette University Center for the Study of Religion, Law & Democracy; David E. Campbell, John Cardinal O’Hara, C.S.C. Associate Professor of Political Science at the University of Notre Dame; Patrick Wolf, Professor and Twenty-first Century Chair in School Choice, Department of Education Reform, University of Arkansas; Paul Finkelman, President William McKinley Distinguished Professor of Law and Public Policy and Senior Fellow in the Government Law Center, Albany Law School; Christopher Lubienski, Associate Professor of Education Policy, Department of Educational Organization and Leadership, University of Illinois at Urbana-Champaign; Peter Weitzel, a graduate student researching education policy, Department of Educational Organization and Leadership, also at University of Illinois at Urbana-Champaign; Terry M. Moe, Professor of Political Science, Stanford University; Scott Ellis Ferrin, Associate Professor of Educational Leadership and Foundations, Brigham Young University; Pamela R. Hallam, Assistant Professor of Educational Leadership and Foundations, Brigham Young University; Daniel Witte, a corporate attorney; Paul Mero, President of the Sutherland Institute in Salt Lake City, Utah, and Clint Bolick, a lawyer and Director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Phoenix, Arizona.

As will be clear from reading these articles, school choice questions will continue to face America for some time to come. It is hoped and expected that this volume will bring light to the issues for those who continue the fight for better education throughout the nation. The Utah referendum defeated that state’s voucher initiatives—for now at least, say their proponents—but that defeat and the animated discussion that preceded it have done nothing to stop similar initiatives throughout the country from running their course. On the contrary, voucher plans and proposals are alive and well. This issue of the Law Review should provide valuable insights and guidance to those embroiled in the most heated centers of the national school-choice debate.

David M. Kirkham, JD, PhD
Senior Fellow for Comparative Law and International Policy  
International Center for Law and Religion Studies
J. Reuben Clark Law School – Brigham Young University