Homeschooling, Virtual Schools, and the Erosion of
the Public/Private Binary in Primary and Secondary
Education
Aaron Saigera
a
Fordham University, School of Law, New York, New York, United States
Abstract. Although precise demarcations differ, states ubiquitously define a legal reality in which
two discrete sectors, public and private, operate. Homeschooling is sometimes understood as a
third sector; more often, however, it is conceptualized as a species of private education. This
subjects it to certain kinds of regulation and deprives it of public fiscal support. But this is changing,
especially, with the accelerating diffusion of virtual schooling. Virtual education helps
homeschoolers directly. But, much more importantly, public school systems are deploying virtual
education in ways that blur previously impermeable walls between public and private. Many
obstacles to homeschooling will fall with those walls—particularly obstacles related to government
financing of homeschooling activities.
THE HEGEMONIC PUBLIC/PRIVATE BINARY
The regulatory status of homeschooling is highly dependent upon a legal and regulatory binary,
deeply rooted in many legal systems, that every school must be either public or private. Although
in some contexts homeschools face particular regulatory requirements, and in that sense are a third
discrete regulatory sector, generally they are considered to be a peculiar variety of private schools. 1
The latter is the dominant approach in the United States. 2 Although there are some good reasons to
treat homeschools as a sui generis third category, there is an undeniable and strong analogy between
home and private schooling: both involve opting out of state-provided education.
Kimberly Yuracko, Education Off the Grid: Constitutional Constraints on Homeschooling, 2008 CALIFORNIA L. REV. 123–
184, at 151 & n.138, 169
1
LAWRENCE WINER & NINA CRIMM, GOD, SCHOOLS, AND GOVERNMENT FUNDING: FIRST AMENDMENT CONUNDRUMS 29–31, 58–59
(Ashgate 2015).
2
1
Important comparative legal scholarship demonstrates that the categories of “public” and “private,”
as applied to schools, bear vastly different meanings in different systems. 3 In the United States,
moreover, the meaning of the terms has shifted dramatically over time.4 Prior to the twentieth
century, in the United States “[t]he terms ‘public’ and ‘private’ did not have their present
connotations, and most schools did not fit neatly into either of our modern categories.”5 In the
1800s, American schools were arranged by cooperatives of neighbors. Schools’ organizers accepted
that their institutions served a “public” function but “by contemporary standards” they “were private
institutions,” even as some received taxpayer subsidies. 6 Later, when Progressive-era reformers
attacked the institution of the “private” school, they meant to refer to something different than what
Americans reflexively understood it to mean in, say, the 1960s or 1990s. 7
Today’s American idea of what makes a public school is, in other words, highly contingent. Reese
notes that “modern distinctions between ‘public’ and ‘private’” were late in time and arrived at
through a process both “slow and uneven.”8
Nevertheless, by the latter half of the twentieth century, the contemporary concepts of “public” and
“private,” described above, had achieved ideological “hegemony” in America. 9 A particular sort of
“public” school, founded and managed along Progressive lines, had become the “taken-for-granted
educative institution for most Americans.”10 It was education’s “one best system.”11 Like the free
press, it was a fundamental “institution of American constitutional democracy” (although
See 1 CHARLES L. GLENN & JAN DE GROOF, BALANCING FREEDOM, AUTONOMY AND ACCOUNTABILITY IN EDUCATION 53, 60, 93, 101,
104–05 (Wolf Legal Pubs. 2005).
3
This discussion, along with other charter school materials in this paper, relies heavily on the discussion and citations in
Aaron Saiger, Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education, 34 CARDOZO L. REV.
1163 (2013).
4
CARL F. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY, 1780–1860, at 13 (Hill & Wang 1983).
Accord STEVEN K. GREEN, THE SECOND DISESTABLISHMENT: CHURCH AND STATE IN NINETEENTH-CENTURY AMERICA 253 (Oxford
UP 2010); DAVID B. TYACK, THE ONE BEST SYSTEM: A HISTORY OF AMERICAN URBAN EDUCATION 57 ( Harvard UP 1974).
5
Julie A. Reuben, Patriotic Purposes: Public Schools and the Education of Citizens, in THE PUBLIC SCHOOLS 1, 5 (Susan
Fuhrman & Marvin Lazerson eds., Oxford UP 2005); cf. JAMES C. CARPER & THOMAS C. HUNT, THE DISSENTING TRADITION IN
AMERICAN EDUCATION 172 (Peter Lang 2007) (listing arguments in favor of public funding of Catholic schools because such
schools, inter alia, would “contribute to the public good”).
6
7
8
WILLIAM J. REESE, HISTORY, EDUCATION, AND THE SCHOOLS 99–102 (Palgrave MacMillan 2007); KAESTLE, supra note 5, at 116.
9
10
11
REESE, supra note 7, at 100.
STEVEN L. JONES, RELIGIOUS SCHOOLING IN AMERICA: PRIVATE EDUCATION AND PUBLIC LIFE 2 (Praeger 2008).
Id. at 4.
See generally TYACK, supra note 5.
2
mentioned nowhere in the Constitution).12 Its particular characteristics, and their combination
within a single institution, have been a fixed point in public understanding for decades.
That understanding designates public schools as those that are free of charge to parents. Such
schools are governed by a local school government, a “board of education” that monopolized the
provision of public schooling within its jurisdiction. That board is popularly elected within that
jurisdiction. It imposes taxes on property to support its activities. (Later, state and federal monies
came substantially to supplement the local financing of the public schools.) Public schools must
admit all pupils within the jurisdiction — although certain categories of children, notably racial
minorities, the disabled, and noncitizens, only came to be included within this stricture over time.
Public schools are secular.
These features, moreover, are understood to be a package deal. Unbundling is not permitted.
Private schools have a very different characteristic vector of institutional features. They are
regulated by the state, but the scope of that regulation is considerably less than that affecting public
schools. Private schools are privately managed and run. They have no obligation to educate any
particular child beyond duties created by the civil rights laws prohibiting discrimination, by
enrollment contracts, and by the dictates of their own mission or conscience. They may select their
students from any geographic location. And private schools may be religious. (Indeed, religious
institutions today account for approximately 75 percent of private school enrollment. 13)
Private schools, moreover, receive no or minimal government monies. Instead, they charge tuition,
or else support themselves through private charity. Because public schools cannot be unbundled,
parents and schools that wish to forgo public management or pervasive regulation must also forfeit
public subsidy and pay their own way. Thus the famous observation that those who opt out of
public schooling in the United States pay twice, 14 although, as some have noted, it is more accurate
to say that they pay three times. They pay taxes to support the public schools, like any other
taxpayer; they do not send their children to the public schools, relieving the public fisc of the duty
to expend resources to educate those children; and then, under compulsory schooling laws, they
must utilize their own resources to provide that education.
(Homeschoolers are like private school parents in this respect, except that they pay with their time
many of the expenses that other private school parents pay for in cash. 15 Homeschoolers also pay
for some things in cash, of course, including materials and sometimes special instruction; and they
Jaroslav Pelikan, The Public Schools as an Institution of American Constitutional Democracy, in THE PUBLIC SCHOOLS,
supra note 6, at xiii; cf. HENRY ADAMS, THE EDUCATION OF HENRY ADAMS 33 (1918) (equating the press and the school as
fundamental institutions).
12
Grace Kena et al., The Condition of Education 2015, 70, 74–75 fig 2.1, (National Center for Education Statistics, U.S.
Department of Education, May 2015).
13
14
15
Stephen D. Sugarman, Using Private Schools to Promote Public Values, 1991 U. CHI. LEGAL F. 171, 181.
WINER & CRIMM, supra note 2, at 29–31, 58–59.
3
do receive some minimal subsidies, as, for example, when they are allowed to use public school
facilities or transportation without charge.)
I have purposely described these features of “public” and “private” schools as constituting
“understandings” or “vectors of characteristics,” not as definitions. Pursuant to those
understandings, a great deal hinges upon whether a school is “public” or “private.” On nearly every
dimension, whether a school is “public” or “private” determines key market and regulatory
constraints that it faces. Its category determines whether it can receive public monies, teach
religion, or deny admission to a student it does not desire to teach. But these bundles of features
are not legally codified definitions.
Indeed, both “public” and “private” lack clear legal definition. Most state and federal statutes
assume the popular understandings. Only a handful of Supreme Court cases—most notably the
2002 school vouchers case, Zelman v. Simmons-Harris—say anything at all about how to distinguish
between public and private schools.16 Instead, “public” and “private” are descriptions of the two
clusters of school types that existed in the United States for most of the twentieth century. It was
generally clear to everyone, including lawyers, legislators, bureaucrats, and parents, which kind of
school was which. Categorization was usually easy, and therefore it was easy to determine which set
of regulatory requirements applied to any given school.
In the occasional circumstance where it was difficult to determine whether a school was public or
private, that determination was generally highly contextualized. A paradigmatic example is the 1982
decision of the United States Supreme Court in Rendell-Baker v. Kahn.17 Rendell-Baker involved a
school organized as a private corporation but that received nearly all of its income by contracting
with the state to meet the state’s obligation to educate special-needs children. Those children
attended the school free of charge. The school was sued by teachers who felt that they had been
unfairly dismissed. Notwithstanding the school’s only function was to provide classically “public”
services to nonpaying students using public monies, the Court held that the school was a “private”
entity. But this holding was limited to the question of which rules of employment law governed the
dispute between the school and the teachers.
Lately, however, categorization has become less straightforward. The public/private binary and its
hegemony are eroding. The most prominent cause of this development to date has been the charter
school. Going forward, the most important influence destabilizing the public/private binary will be
virtual education.
16
17
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
Rendell-Baker v. Kohn, 457 U.S. 830, 832–33 (1982).
4
CHARTERS AS DESECTORIZING
A charter is a school created by some group of stakeholders that receives public funds to provide
education on a nondiscriminatory basis to students who choose to enroll. 18 Charters are important
for two reasons. First, the charter sector is growing explosively. In 2009–10, 1.6 million children
were enrolled in 5,000 charter schools, making charters five percent of all public schools. 19 By
comparison, 500,000 children were enrolled in 2,000 charters in 2000, and there were no charter
schools in 1990.20 Fifteen school districts enroll at least a quarter of all public-school students in
charters, including big-city districts in New Orleans, Detroit, the District of Columbia, Kansas City
(MO), St. Louis, Cleveland, San Antonio, and Indianapolis.21 Most government-funded schools in
New Orleans are now charter schools;22 other large districts, including Los Angeles, Chicago,
Houston, Philadelphia, and Miami-Dade, enroll more than ten percent of their students in
charters.23 Public school districts in these and other cities are complaining about the sizable bite
charters are taking from their traditional enrollments.24 The two most recent presidents, one of each
party, have been charter boosters. The possibility that chartering will fizzle out seems remote. 25
As chartering accelerates, the challenge that it poses to the public/private binary becomes ever more
pressing. Charter schools share many important features with traditional public schools. Charter
schools are publicly funded and require a government endorsement (the “charter”). They do not
admit privately paying students and may not charge tuition.26 Only in some states are charters
exempt from the collective bargaining agreements reached by their local school districts with
teachers and other staff.27 Charters are also prohibited from discriminating among students in
See Saiger, supra note 4, for the data and citations in this paragraph.
18
Inst. of Educ. Servs., U.S. Dep’t of Educ., The Condition of Education 2012, at 22, (2012), available at
http://nces.ed.gov/pubs2012/2012045.pdf.
19
JOSEPH MURPHY & CATHERINE DUNN SHIFFMAN, UNDERSTANDING
(Teachers College P 2002).
20
AND
ASSESSING
THE
CHARTER SCHOOL MOVEMENT 28–29
Nat’l Alliance for Pub. Charter Sch., A Growing Movement: America’s Largest Charter School Communities 3 (7th ed. Nov.
2012).
21
22
23
See generally Robert Garda, The Politics of Education Reform: Lessons from New Orleans, 40 J. L. & EDUC. 57 (2011).
NAT’L ALLIANCE FOR PUB. CHARTER SCH., supra note 21, at 3.
24
25
Motoko Rich, Enrollment Off in Big Districts, Forcing Layoffs, N.Y. TIMES, July 24, 2012, at A1.
JACK BUCKLEY & MARK SCHNEIDER, CHARTER SCHOOLS: HOPE OR HYPE? 3 (Princeton UP 2007).
See Julie F. Mead, Devilish Details: Exploring Features of Charter School Statutes That Blur the Public/Private Distinction,
40 HARV. J. ON LEGIS. 349, 367 (2003) (noting this principle and occasional exceptions thereto).
26
27
See R. Kenneth Godwin & Frank R. Kemerer, School Choice Tradeoffs: Liberty, Equity, and Diversity 6 (U Texas P 2010).
5
admission.28 Oversubscribed charters must admit students by lottery, 29 although there is perennial
concern that they use strategies such as location, targeted advertising, and counseling students at
enrollment and re-enrollment to shape their student bodies to their liking. 30
In other, equally important respects, charters are classically private. They can be established by any
group of people or institution that can meet the regulatory requirements and attract students. This
group might be made up of teachers, parents, not-for-profit, or for-profit actors. Charters are
privately managed and regulated much less heavily than archetypical public schools.
And families choose charters; no child is forced to attend. Charters, like private schools, therefore
face market discipline. Within whatever regulatory strictures are imposed, charters compete for
students with other charters and with other types of schools. If students enroll, a charter thrives.
Otherwise it dies.31
Charter schools therefore pose a clear challenge to the binary. The only fair description of charter
schools, given their characteristics, is that they are public/private hybrids. However, for reasons
connected with gaining and maintaining political support, charter school advocates have striven to
define these hybrid schools as “public.” Nearly all states’ charter school statutes, for similar political
reasons, define charters to be “public schools.” Saying it does not, of course, make it so; RendellBaker, for example, demonstrates that for many purposes charter schools will be deemed private. A
school that is public for one set of purposes can be private for another. 32
The popular and political decision to define charters as “public” is properly seen as an attempt to
place a square peg in one of two round holes. The perceived necessity for that move indicates the
continuing hold of the binary. The unsuitability of the peg for the holes, however, suggests that
simply calling charters “public” when they have so many “private” features will be unsustainable in
the long run.
See Stephen D. Sugarman & Emlei M. Kuboyama, Approving Charter Schools: The Gate-Keeper Function, 53 ADMIN. L.
REV. 869, 873 (2001).
28
For typical requirements for open or random enrollment, see ARIZ. REV. STAT. ANN. § 15-184(A) (2012); MD. CODE ANN.,
EDUC. §§ 9-102(3), 9-102.1(b) (LexisNexis 2013).
29
Christopher Lubienski & Peter Weitzel, Choice, Integration, and Educational Opportunity: Evidence on Competitive
Incentives for Student Sorting in Charter Schools, 12 J. GENDER RACE & JUST. 351, 361 (2009).
30
See Sugarman & Kuboyama, supra note 28, at 876 (having “satisfied customers” necessary, though insufficient, for a
charter school); Sandra Vergari, Charter Schools: A Significant Precedent in Public Education, 59 N.Y.U. ANN. SURV. AM. L.
495, 500 (2003).
31
Preston C. Green, Bruce D. Baker & Joseph Oluwole, The Legal Status of Charter Schools in State Statutory Law, 10 U.
MASS. L. REV. 240 (2015); Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
32
6
VIRTUALITY AS DESECTORIZING
Virtual education is a less advanced reform than charters, but, like charters, its spread seems
inexorable. Compared to higher education in particular, broad public awareness of e-delivery of
primary and secondary education is fairly low.33 But big changes are happening despite—or,
perhaps, because of—there not being much of a spotlight. And the potential of virtuality to disrupt
the public/private binary is even greater than that of charter schools.
Today’s virtual education sector can be divided into three broad categories. The first involves virtual
tools used to supplement existing in-person education. Educators and entrepreneurs are busily
rolling out a gallimaufry of approaches that integrate technology into classrooms. Schools across
the country are buying computers, wiring for high-speed internet, and instructing their students to
“bring your own device.” In the United States (and throughout the developed world), technology is
now commonplace in classrooms and is used both in school management and student work. 34
Technology also supplements pedagogy. Mathematics and other instructors are turning classrooms
“upside-down,” so that students consume online lectures at home and are coached by teachers as
they practice, in school, what they have learned. Perhaps the best-publicized tool associated with
the flipped classroom is the suite of online instructional videos produced by Salman Khan, available
on the web as the “Khan Academy.”35 In their first iteration, Khan’s online videos were short,
discrete mathematics lessons. The videos’ appearance was, and remains, determinedly, almost
aggressively low-tech. Their visuals consists simply of a blackboard, on which handwritten
equations and graphs appear. As the blackboard fills up, a voice-over explains each step. Sometimes
the voice-over suggests that the viewer pause the video and solve a problem. When you start the
video again, it reviews the problem with you.36
Khan’s videos were an instant sensation. Unlike reading a textbook, explanations, proofs, and
examples unfold in real time, accompanied by narration. But the videos are also different from a
mathematics class. They can be watched at any time. Moreover, they can be viewed over and over
Although the mainstream media has selectively covered K–12 online education, the vast majority of coverage has focused
on online learning at the post-secondary level. Compare Stephanie Saul, Profits and Questions at Online Charter Schools,
The New York Times, Dec. 13, 2011, A1, and Larry Cuban, Why K-12 Online Learning Isn’t Really Revolutionizing Teaching,
The Washington Post, June 3, 2013 http://www.washingtonpost.com/blogs/answer-sheet/wp/2013/06/03/why-k-12-onlinelearning-isnt-really-revolutionizing-teaching, with Clayton M. Christensen & Michael B. Horn, Going All the Way, The
New York Times, Nov. 3, 2013, ED25, and Kevin Carey, Changing College for Good, The New York Times, Mar. 8, 2015, SR2.
An international survey also revealed a general lack of knowledge about online learning and found that many countries
were not aware that online education “could or was being implemented in elementary and secondary schools.” Michael
Barbour et al., Online and Blended Learning: A Survey of Policy and Practice of K-12 Schools Around the World 18
(iNACOL Nov. 2011).
33
34
35
NEIL SELWYN, SCHOOLS AND SCHOOLING IN THE DIGITAL AGE: A CRITICAL ANALYSIS 23–24 (Routledge 2011).
SALMAN KHAN, THE ONE WORLD SCHOOLHOUSE: EDUCATION REIMAGINED 115–18 (Hachette Book Group 2012); R. MURPHY ET
1–2 (SRI Education March 2014).
AL., RESEARCH ON THE USE OF KHAN ACADEMY IN SCHOOLS
36
KHAN, supra note 35, at 28.
7
again, and rewound as many times as a student wants, to whatever point the student feels necessary.
Here is a teacher who is not only always available but infinitely patient, and always ready to repeat
himself and then repeat yet again.
Today’s iteration of Khan Academy is considerably teched up from its beginnings. The site offers
videos covering a wide range of subjects, including mathematics, science, social science, and the
humanities. Although Khan Academy was initially intended as an entirely extracurricular resource,
it is now widely used by schools.37 It features diagnostic tests, and can allow a teacher using the site
access to analytics and other data on student progress. Khan, an unabashed cheerleader for this
approach, says that his program shows the way forward to “the school of the future.” It is, Khan
says, “magical.”38
There are also numerous online platforms that allow students and teachers to communicate, post
and respond to homework assignments, take quizzes, and monitor their progress. Specialized
features abound. Some, for instance, analyze student work for plagiarism. Others have an analytics
back-end similar to that of Khan Academy, so that teachers and other school officials can monitor
students’ use of the site and see how they respond to specific kinds of questions. Still other
platforms aim to improve students’ conduct by tracking their behavior.39 And efforts are underway
to build “completely realized, networked digital environment[s]” that will integrate in-school
pedagogy, learning, and assessment into single, seamless “digital teaching platforms.” 40
Tools like these allow teachers to use data to spot particular problems or areas of strength, and to
understand in which areas students have gained mastery and in which they need more work. One
can also tell whether problems are systematic, confined to particular students, or associated with
students with particular characteristics. All these kinds of information allow users to tailor
interventions, for students and teachers alike. To proponents of such systems, the tools offer
substantial value compared to non-data-driven approaches to assessment, where some students fall
through the cracks, where teachers have relatively little fine-grained information about most of
their students, where administrators receive only the most general information about teachers, and
where it is difficult for teachers to assess their own effectiveness.
These kinds of innovations are meant to supplement teaching and learning in traditional, brickand-mortar schools. More germane to the discussion is a second category of programs. These use
information technology to supplant some or all of traditional classroom instruction. At the margins,
some supplantation strategies are hard to distinguish from supplementation. A teacher who assigns
Khan Academy videos and problems is supplementing her classroom instruction, just as she would
MURPHY ET AL., supra note 35, at 1–2; Somini Sengupta, Online Learning, Personalized, The New York Times, Dec. 5, 2011,
B1.
37
38
39
40
KHAN, supra note 35, at 194–95.
Natasha Singer, Clicks, Not Gold Stars, N.Y. TIMES, Nov. 17, 2014, B1.
CHRIS DEDE & JOHN RICHARDS (EDS.), DIGITAL TEACHING PLATFORMS 1 (TC Press 2012).
8
if she assigned problem sets or excerpts from a textbook. But if she relies on the Academy to any
substantial extent, she has also adopted a model that has been characterized as “blended” or
“personalized” learning. “Blended learning” can be described as “splitting up the work of teaching
between man and machine [by] combining teacher-led lessons with computer-based lectures and
exercises.”41 Educators who study the technique define it as instruction some of which takes place
“at a supervised brick-and-mortar location away from home”—school, in other words—while at the
same time “a student learns at least in part through online delivery of content and instruction with
some element of student control over time, place, path, and/or pace.” 42
A 2014 report from the Michael and Susan Dell Foundation expects blended learning to become
“standard practice in many classrooms in the future.”43 In a 2015 survey, forty-five percent of schooldistrict administrators reported that they were using blended learning “with positive results.” 44
Other kinds of efforts are more straightforward substitutes for in-person instruction. The
proliferation of online courses, especially at the middle- and high-school levels, is the clearest
example. All over the country, schools are using online courses to provide instruction that they
cannot, or no longer want to, provide in person.45 The foreign language that the school does not
offer, the advanced science or math course, or the advanced placement course not in the curriculum
can all be taken online instead. So can courses that, were it not for the online option, schools would
surely have continued to offer in person.
Sometimes these substitutions can be startling. For example, physical education is now one of the
most popular virtual courses taken by Florida high school students, who must (sometimes with
parental certification) maintain online records of their physical activity. 46 One might have thought
41
42
43
Sengupta, supra note 37.
HEATHER STAKER & MICHAEL B. HORN, CLASSIFYING K–12 BLENDED LEARNING 3 (Innosight Institute May 2012).
Robert Murphy et al., Blended Learning Report 3 (Michael & Susan Dell Foundation May 2014).
Project Tomorrow, Digital Learning 24/7: Understanding Technology — Enhanced Learning in the Lives of Today's
Students 6 (2015).
44
See Barbara Queen et al., Distance Education Courses for Public Elementary and Secondary School Students: 2009–10, at
3 (National Center for Education Statistics Nov. 2011) (Sixty-four percent of public school districts and the elementary and
secondary levels reported that providing courses not otherwise available at the school was a very important reason for
offering distance education courses); see also Margaret Clements et al., Online Course Use in Iowa and Wisconsin Public
High Schools: The Results of Two Statewide Surveys 9 (National Center for Education Evaluation and Regional Assistance
Jan. 2015) (In Iowa and Wisconsin, more than fifty percent of public high schools that reported using online learning
during the 2012-13 school year cited providing a course not otherwise available as a very important reason for enrolling
students in online courses); Avi Wolfman-Arent, The MOOC Heads Back to High School in Delaware, NEWSWORKS, May
19, 2015 http://www.newsworks.org/index.php/local/delaware/82067-mooc-meets-high-school-in-delaware-classrooms
(Delaware relies on educational services firm Amplify to offer AP Computer Science in its high schools because most
schools in the state would reportedly not have enough interested students to justify the cost of administering the technical
course otherwise).
45
Kimberly Wiggins, Class of 2015 is First Require to Pass a Digital Learning Course, WOFL Fox 35 Orlando, Sept. 5, 2014
http://www.myfoxorlando.com/story/26462837/class-of-2015-is-first-required-to-pass-a-digital-learning-course. For two
of Florida Virtual School’s physical education courses, students must check their heart rate before and after they exercise
and report it online. However, because average heart rate numbers can be easily found with a simple Google search, the
46
9
that physical education fit poorly with the internet medium, but in light of actual economic and
time pressures on students and schools, it proves entirely adaptable. Or consider a December 2015
brouhaha involving the Schools Chancellor of the City of New York, Carmen Fariña. Challenged by
a parent upset about the cancellation of the French courses in her son’s middle school, Fariña urged
her to buy the boy Rosetta Stone, the language software package, as a Christmas present. Rosetta
Stone is “a really good program…. It’s very exciting.” Fariña was excoriated for recommending
expensive software to poor parents. But in the same exchange she imagined an after-hours online
language lab for the boy’s school: “All you need is the use of a computer room and laptops,” she
said.47
The online course has some obvious benefits for students in traditional schools. One can see why
the parent who confronted Fariña would be upset even if the City were to pay for the Frenchteaching software that would replace the French course that was cut. (To be clear, Fariña did not
offer to pay.) Nevertheless, a student who wants to learn French but whose school offers only
Spanish used to be simply out of luck. A student interested in advanced mathematics was often
similarly disappointed. (Even in schools where advanced math is offered in-person, the scheduling
flexibility offered by online physical education can sometimes make the difference.) The benefits
for schools are equally obvious. They can expand their curriculum. Although online instruction is
not free for schools, they can avoid the fixed and institutional costs of developing and providing
courses themselves. Online gym, and even online French, make those incentives vivid.
It is unsurprising, therefore, that (as of August 2014) high school students in Alabama, Arkansas,
Florida, Michigan, and Virginia were required by law to take at least one online course to be
graduated.48 Other states have passed legislation that makes it easier for online institutions to offer
courses and creates incentives for students to enroll in them.49
Local school districts also create incentives for their students to move their educations online.
Districts like those in Fairfax, Virginia, and Houston, Texas, maintain an “online campus” through
which high school students can register for online versions of standard high school courses. “These
courses,” according to the “Frequently Asked Questions” list on the Fairfax campus’s website, are
intended “for students who have scheduling conflicts, special medical needs requiring a home or
hospital setting, special needs requiring a flexible schedule, or, are seeking to complete high school
school system requires parents to sign off on the assignments. Sarah Gonzalez, How Students Take Physical Education
Online, StateImpact Florida, Aug. 28, 2012 http://stateimpact.npr.org/florida/2012/08/28/how-students-take-physicaleducation-online.
Carolina Pichardo, Buy Rosetta Stone, Farina Tells Parents Upset Over Foreign Language Cuts, DNAInfo New York,
December 22, 2015, at http://www.dnainfo.com/new-york/20151222/fort-george/buy-rosetta-stone-farina-tells-parentsupset-over-foreign-language-cuts.
47
48
John Watson et al., Keeping Pace With K-12 Digital Learning 64 (Evergreen Education Group 2014).
Id. at 64; Lyndsey Layton & Emma Brown, Virtual Schools are Multiplying, But Some Question Their Educational Value,
WASHINGTON POST, Nov. 26, 2011 http://www.washingtonpost.com/local/education/virtual-schools-are-multiplying-butsome-question-their-educational-value/2011/11/22/gIQANUzkzN_story.html.
49
10
graduation requirements.”50 (That last category, of course, applies to almost every student enrolled
in high school.)
Just as supplementation can shade into substitution, online courses can be combined to the point
that school itself becomes online. In a 2010 survey of public school districts, twenty-two percent
reported that high school students “could take a full course load in an academic term using only
distance education courses,” and another twelve percent reported that students “could fulfill all high
school graduation requirements using only distance education courses.”51 By simply combining
online courses, students can turn themselves into online students, even as they are matriculants of
traditional schools.
Specific legislation in the states has also enabled the creation of fully online schools, designed
purposefully to operate exclusively online. This is the third category of virtual education programs.
Several American states have established, by statute, an online “virtual school district.” 52 These
districts, which exist in at least 17 states, including Florida, Massachusetts, and Virginia, are distinct
from any of the state’s brick-and-mortar public school districts. Students anywhere in the state may
enroll in these schools; they are not students in any other school, as are many students who take
online classes. Such students do their coursework entirely in the cloud.
Many other online schools, not part of virtual districts, have been organized as cybercharter schools.
These schools use the charter school form discussed above, which of course was developed for, and
is still mostly used by, in-person schools. In recent years, several states have adapted their
regulatory regimes to permit charter schools to operate exclusively online.53 Cybercharters may be
big or small; the Texas Virtual Academy, for example, operates not as a state school district but as a
cybercharter.54 Cybercharters operate at every educational level, from kindergarten through high
school.
The controversies that have surrounded charter schools generally map easily onto the cybercharter
phenomenon. Charter detractors view charters as efforts to siphon money and committed students
from traditional public schools, as attempts to weaken teachers, and as institutions that can
Fairfax County Public Schools, Online Campus Frequently
http://www.fcps.edu/is/onlinecampus/faq.shtml#Anchor-Wha-42320.
50
51
Asked
Questions,
available
at
Queen et al., supra note 45, at 3.
ARIZ. REV. STAT. ANN. § 15-808; FLA. STAT. ANN. § 1002.37; GA. CODE ANN. § 20-2-319.1; IDAHO CODE ANN. § 33-5504A; IOWA
CODE ANN. § 256.42; ME. REV. STAT. TIT. 20-A, § 19152; MASS. GEN. LAWS ANN. Ch. 71, § 94; MISS. CODE. ANN. § 37-161-3; MO.
ANN. STAT. § 161.670; MONT. CODE ANN. § 20-7-1201; N.M. STAT. ANN. § 22-30-3; S.C. CODE ANN. § 59-16-15; S.D. CODIFIED
LAWS § 13-33-24; TEX. EDUC. CODE ANN. § 30A; UTAH CODE ANN. § 53A-15-1002.5; VA. CODE ANN. § 22.1-212.24; W. VA. CODE
ANN. § 18-2E-9.
52
53
Thomas Clark, Virtual Schooling and Basic Education, in ECONOMICS OF DISTANCE AND ONLINE LEARNING: THEORY, PRACTICE
52, 57 (William J. Bramble & Santosh Panda eds., Routledge 2008).
AND RESEARCH
54
See Texas Virtual Academy Website, available at http://txva.k12.com.
11
exacerbate discrimination based upon class, race, and disability. 55 Those who advocate for charters
see them as a welcome corrective to the monopoly power of local school districts. Parents who have
publicly-funded alternatives to what would otherwise have been their assigned public school are
more likely to be able to place their children in a program that meets their needs. 56 Moreover, the
introduction of competition into the system disciplines all market participants, both charters and
traditional schools.57
These forms of online learning—the online supplement, blended learning, the online course, the
state virtual school district, and the cybercharter school—represent the very earliest forms of online
K–12 education. They will certainly grow and change. But they are already a significant
phenomenon. Consistent data are hard to obtain.58 But, in the 2013–14 school year, one census
counted 400 full-time virtual schools with an estimated enrollment of 263,705 students. 59 A
different study in the same year counted 316,320 pupils, about one-half of one percent of all students,
receiving all of their K–12 education online.60 Fully online schools were operating in thirty different
states.61
Meanwhile, by the 2007–08 school year, seventy percent of school districts that offered online
learning were reporting that at least one of their students was taking an online course. 62 In the
2009-10 school year, there were more than 1.8 million enrollments in online courses (some students
Valerie Strauss, A Dozen Problems With Charter Schools, WASHINGTON POST, May 20,
http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/05/20/a-dozen-problems-with-charter-schools.
55
2014
See Motoko Rich, Enrollment Off in Big Districts, Forcing Layoffs, N.Y. TIMES, July 24, 2012, A1; Rose M. Marsh, Alison A.
Carr-Chellman & Beth R. Sockman, Selecting Silicon, Why Parents Choose Cybercharter Schools, 53 TECHTRENDS 32, 34
(July/Aug. 2009); Buckley & Schneider, supra note 25, at 3; Vergari, supra note 31, at 511; Sandra Harris, Children with
Special Needs and School Choice: Five Stories, 46 PREVENTING SCHOOL FAILURE 75, 77–78 (Winter 2002); MARK SCHNEIDER,
PAUL TESKE & MELISSA MARSCHALL, CHOOSING SCHOOLS: CONSUMER CHOICE AND THE QUALITY OF AMERICAN SCHOOLS 26
(Princeton Univ. Press 2000)
56
Julian R. Betts & Paul T. Hill (eds.), TAKING MEASURE OF CHARTER SCHOOLS: BETTER ASSESSMENTS, BETTER POLICYMAKING 210
(Rowman & Littlefield Education 2010).
57
Lisa Hasler Waters, Michael K. Barbour & Michael P. Menchaca, The Nature of Online Charter Schools: Evolution and
Emerging Concerns, 17 EDUCATIONAL TECHNOLOGY & SOCIETY 379, 380 (2014) ( “Actual K–12 online learning enrollment
numbers are somewhat difficult to come by because there currently is no single entity that tracks students, and because
of the wide variety of ways in which students can engage in this form of schooling.”)
58
Alex Molnar (ed.), Virtual Schools in the U.S. 2015: Politics, Performance, Policy, and Research Evidence 2 (National
Education Policy Center Mar. 2015).
59
60
61
See Watson et al., supra note 48, at 53.
Id.
A.G. Picciano & J. Seaman, K-12 Online Learning: A 2008 Follow-Up of the Survey of U.S. School District Administrators
1 (2009), retrieved from http://www.onlinelearningsurvey.com/reports/k-12-online-learning-2008.pdf.
62
12
may have taken more than one course).63 Most, but not all, online learning that supplanted inperson learning was at the high-school level.64
These are not amazingly high numbers, but neither are they insubstantial. More important, their
trajectory is steep. The 1.8 million online enrollments in 2009–10 can be compared to the estimated
506,950 registrations in technology-based distance education courses during the 2004–05 school
year and the 317,070 in 2002–03.65 Compare these numbers to a small scale survey that suggests
that, in the 2001-02 academic year, only 40,000 to 50,000 students took an online course. 66 In some
states, growth has been even more explosive.67 For example, state virtual schools in Georgia and
North Carolina have seen double-digit growth in course enrollments in each of the last two years. 68
During the 2013-14 school year, state virtual schools served 741,516 supplemental online course
enrollments.69
In full-time virtual schools, enrollment increased by a factor of ten between 2002 (25,000 students)
and 2010 (250,000 students).70 Cyber-charters, similarly, grew in both number and size over a span
of five years during the same time period. A 2014 report found that the number of cybercharter
schools increased from 147 cybercharters with 65,000 students in 2006 to 220 cybercharters with
217,000 students in 2011.71 It is hard to imagine that in the mid-1990s, when post-secondary
institutions helmed the distance-education movement, these enrollment numbers for K-12
education were anything other than close to zero.72
63
Queen et al., supra note 45, at 3.
Id. (During the 2009-10 school year, “[s]eventy-four percent of the distance education enrollments were in high schools,
[nine] percent were in middle or junior high schools, and [four] percent were in elementary schools.”).
64
Izabella Zandberg, Laurie Lewis & Bernard Greene, Technology-Based Distance Education Courses for Public Elementary
and Secondary Schools: 2002-03 and 2004-05, at 15 (National Center for Education Statistics June 2008).
65
66
Tom Clark, Virtual Schools: Trends and Issues i (Distance Learning Resource Network Oct. 2001).
Sarah Hofius Hall, Enrollment in Cyberschools Soars in NEPA, THE TIMES-TRIBUNE, Oct. 16, 2011 http://thetimestribune.com/news/enrollment-in-cyberschools-soars-in-nepa-1.1218654.
67
Georgia Virtual School reported 33,041 in the 2013-14 school year, a 28 percent increase over the previous year, and North
Carolina Virtual Public School served 104,799 enrollments over the same period, accounting for an 11 percent increased
over the previous year. Watson et al., supra note 48, at 27.
68
69
Id.
Gary Miron & Jessica L. Urschel, Understanding and Improving Full-Time Virtual Schools 2 (National Education Policy
Center July 2012). Online schools run by education management organizations (EMOs) saw the same rate of growth
during the time period. For-profit and nonprofit EMO-operated schools enrolled 11,500 students during the 2003-04
school year and almost 115,000 students in 2010-11. Gary Miron et al., Profiles of For-Profit and Nonprofit Education
Management Organizations 18 (National Education Policy Center Jan. 2012).
70
71
Waters et al., supra note 58, at 381.
See Anna C. Sikora & C. Dennis Carroll, A Profile of Participation in Distance Education: 1999-2000, at iii (National
Center for Education Statistics Nov. 2002). Before the Office of Educational Technology in the U.S. Department of
Education commissioned a survey of the distance education courses for public elementary and secondary students during
the 2002-03 school year, there was “no nationally representative study [that] examined technology-based distance
72
13
Virtual education is a foundational challenge to the public/private binary because it abolishes
several key features that are core characteristics of the traditional “public” school, without replacing
them with corresponding features of a “private” school. In particular, virtual education need not be
bundled, need not be organized into traditional communities, and need not be localist in
orientation.
Bundling. Traditional schooling, as we have noted, is a package deal. The constraints of buildings
and transportation mean that, with very rare exceptions, a given child must attend one school
during school hours. That school sets a curriculum which its students consume. This curriculum
may, especially as children get older, allow them a measure of choice in some areas; in many other
respects, however, even older students have no choice at all. A school or school district might
decide, for example, that every student should take calculus, or not to offer calculus to anyone. Both
of these options might be available to it from the perspective of district policy and state law; but
once the school has made its election its students are bound by it. Such school choices, moreover,
might be driven by pedagogical considerations, but they might also be made based upon actual or
perceived demand, resource constraints (teachers, space, money), and other non-pedagogical
factors.
Virtual education radically unbundles schooling. No matter if one school does not offer calculus;
surely some other provider does. Indeed, access to arcane and advanced course offerings is routinely
touted as one of the more obvious benefits of virtual schooling. But unbundling has other effects
whose normative implications are less clear. Today, if a school teaches about family structure,
evolution, or history in ways a family does not like, its options are to complain or to depart for a
different school. The first of these options is often ineffective and the other frequently expensive.
The option merely to move to a different online module for social studies or biology, one more
sympatico with a family’s tastes, saves it, to use Hirschman’s classic categories, the uncertainties
associated with voice and the expense associated with full exit. 73
Bundling is not a new issue. In one sense, many middle- and upper-class parents already unbundle
when they supplement public education with after-school lessons. A robust market supports not
only extracurricular karate, ballet, and piano lessons but enrichment or drill in academic subjects
as well. Parents who supplement choose how to do so, so that many children’s total package of
educational activities differ one from another. Home schooling, as noted below, often involves
radical unbundling.
Virtuality dramatically expands the range of unbundling and makes it relevant to a vastly larger
group than were interested in partial exit from public schooling under the bricks-and-mortar
education availability, course offerings, and enrollments in the nation’s elementary and secondary schools.” J. Carl Setzer,
Laurie Lewis & Bernard Greene, Distance Education Courses for Public Elementary and Secondary School Students: 200203, at 1 (National Center for Education Statistics Mar. 2005).
ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (Harvard UP
1970).
73
14
technological paradigm. If virtuality invites all students to search for and enroll in the particular
courses that meet their needs, everyone becomes an unbundler. In such an environment it is
untenable to hew to all-or-nothing view. This is so even if religion is a motivator for choices among
commodities; it will be but one among many.
Community. One objection to allowing unbundling of the public school programs is that it
undermines the school as a learning community. Since the consolidation of informal schooling at
the dawn of the common-school and Progressive eras, it has seemed obvious and necessary to most
public school people that schools are and must be communities. As discrete places where students,
teachers, and staff gather together at set times in set places in order to teach and learn, what else
could they be? For many who take this view, if schools are not to be anarchies, then they must be
communities.
Community clearly plays a central role in bricks-and-mortar schools. For teachers and staff, they
are workplaces. For neighborhoods, they are local institutions. For students, they are complex sites
of aggregation: to a greater or lesser extent involuntary, organized around learning, but also,
because of the nature of children and the amount of time for which they are required to be in school,
very often the locus of children’s social and political as well as intellectual life.
Community seems less necessary in a world where individual students can log on asynchronously
to a variety of providers to consume commodified courses. But it is not true that virtuality avoids
community. It involves different kinds of communities than those we are used to, but, their
participants insist, they are no less vital for that. Virtual users do not merely consume virtual
experience. They also assist in shaping it. As the late Greg Lastowska put it:
The most compelling element of virtual worlds, it turns out, is not the powerful graphic
technologies they employ but the very real social interactions that occur through that
technology. Virtual worlds are fundamentally new sorts of places…. As books by journalists,
anthropologists, sociologists, and others have explained, because virtual worlds are places,
they are also sites of culture.74
At the same time, virtual worlds are clearly not the sort of communities that traditional public
schools are. They are more atomistic, their membership is more fluid, and they do not have any
natural geographic base. They are a different kind of community than the kind we are used to.
Localism. Geography is particularly important because localism is a foundational principle of
American public school governance. Brown v. Board itself mentions localities. “Today,” Brown
GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAWS OF ONLINE WORLDS 10 (Yale UP 2010). Accord Jack M. Balkin & Simone
Beth Noveck, Introduction to THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS 3, 3 (Jack M. Balkin & Simone Beth
Noveck eds. NYU Press 2006) (virtual worlds “stimulate social experimentation” and “are full of social cooperation and
social conflict”).
74
15
states, “education is perhaps the most important function of state and local governments.”75 The
contemporary rule is best articulated in a later Supreme Court case, Milliken v. Bradley:
[T]he notion that school district lines may be casually ignored or treated as a mere
administrative convenience is contrary to the history of public education in our country. No
single tradition in public education is more deeply rooted than local control over the
operation of schools; local autonomy has long been thought essential both to the
maintenance of community concern and support for public schools and to quality of the
educational process.76
Localism has been a basic premise of schooling for a long time. School districts are therefore
entrenched institutions. They have officeholders, staffs, budgets, and property. They have voters,
constituencies, interest groups. They have political capital and social meanings. They own
buildings, grounds, and equipment. They are parties to labor contracts and insurance policies.
These facts on the ground are among the many reasons districts have been so strong
notwithstanding their inequity-promoting effects.
Districts will not disappear, therefore, at the first hint of digital learning. But virtuality’s challenges
to localism will accelerate over time. The past few years, in which early digital education alternatives
have begun to roll out, have made it already possible to see the shape of the coming challenge to
the district’s privileged position. Every single digital education effort, from the most local to the
least, reflects the aterritorial nature of information technology. And newer initiatives seem to
depart further and further from the localist paradigm.
Since the implementing agencies of public education in this country are school districts, many
efforts have begun there. These are structured to be the most local of efforts. Consider again the
online campuses like those managed by the school district of Fairfax, Virginia. Once something like
an online campus is up and running, one would expect for its proprietors to find it nearly irresistible
to fill available spaces with paying customers, should space remain available after district children
fill their spots. Indeed, it ought to prove deeply tempting to increase capacity to accommodate such
paying customers. Online learning of this kind, much more than in-person classes, has high startup costs but low marginal costs. Once the infrastructure is established, adding more participants is
fairly straightforward and relatively cheap.
Unsurprisingly, this is indeed the policy of the Fairfax Campus: district children attend for free —
unless they are taking more than the seven-course load the district permits — but out-of-district
students pay a few hundred dollars a course. Nor is this unique to Fairfax. The Houston (Texas)
Independent School District runs a “Virtual School Tuition based Program”; its website, in
conjunction with a price list, explains that its “unique program allows for any student from any
75
Brown v. Board of Educ. of Topeka, 347 U.S. 483, 493 (1954).
418 U.S. 717, 741–42 (1974) (internal citations omitted). Accord Martinez v. Bynum, 461 U.S. 321, 329 (1983) (citing
Milliken); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50 (1973) (making similar arguments).
76
16
district in any part of the world to complete courses online with the approval of their school
guidance counselor.”77 Other district-based programs are similar.78
It must be emphasized how striking this policy is. In the context of bricks-and-mortar education,
districts, especially affluent ones like Fairfax, have mightily resisted admitting or registering
students from out of district. Options for interdistrict transfers that have been a part of education
reform packages have generally withered. Such programs generally provide that receiving, wealthy
districts must certify that there is space for additional students; and such districts rarely do so.
This has been the case, for example, in the Cleveland school voucher program. This program
permitted parents of Cleveland public school children to receive vouchers for use outside the
district. That program, and the Supreme Court case upholding it, was famous because it allowed
the vouchers to be used at private religious schools.79 But the voucher law also provided that
vouchers could be cashed at public schools in neighboring, whiter, wealthier districts. This part of
the program was not famous. This is because no vouchers moved across district lines. Receiving
districts had to agree to accept the vouchers, and none would.
Similarly, under the No Child Left Behind Act, children in what the Act (before the 2015
reauthorization) called “failing” schools were supposed to be able to transfer to other districts.
Again, this required non-failing districts to accept them. Unsurprisingly, almost none were willing;
most cited space constraints. It should surprise no one that interdistrict transfer was the least
utilized plank of the Act.
And then you find rich, successful Fairfax, not just accepting paying customers from anywhere in
the country, but soliciting business on the internet. Fairfax online is not the same as Fairfax on the
ground, in part, because the students it accepts in this way are disembodied. No strangers, no outof-towners, actually show up to your local school. Students from beyond the boundary don’t pose
the kind of challenges, real and imagined, when they are virtual as they do when they appear in
person. But another reason is that low marginal cost. In short, not to solicit in such a way must
seem to Fairfax like leaving money on the table. (There are provisions by which traditional high
schools in some sparsely populated states, especially in Northern New England, register students
from neighboring districts without high schools of their own. This is a rare arrangement.)
Other challenges to localism are more direct. The cybercharter schools discussed above are not
necessarily tied to any school district. Like charter schools generally, cybercharters may be started
and managed by a wide variety of organizations; the statutory lists generally include school districts,
but also create an option for chartering by nonprofits, groups of parents and teachers, or for-profit
corporations. Similarly, charter statutes authorize a range of institutions to review charter
77
78
79
http://www.houstonisd.org/Page/65819
Other examples are the Madison (WI) Virtual High School.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
17
applications, grant charters, and monitor the charter schools. Again, school districts are among the
institutions that can do so; but so are state departments of education and state universities.
This means that many cybercharters are detached from the localist school district structure. They
are present statewide, solicit customers statewide, and are regulated by state-level actors. By not
being local school districts, they have no local boundary which entitles them to favor children from
a certain area over others. All comers within the state are treated equally. And this is what they
want. They have no more interest that local efforts like that of Fairfax in leaving money on the table.
Still other cyberschools do not use the cybercharter form per se but nevertheless are organized as
public schools that are independent of the local school district structure. Several states have now
established schools known as Virtual Academies. Some of these, like the Texas Virtual Academy,
are cybercharters.80 Others, however, are formally organized as institutions that serve students
under the umbrella of particular school districts. But they are not really local projects. The schools
are established under state legislation that invites districts — but not only districts — to plan and
implement such schools, often in collaboration with an outside provider or contractor.
For example, the Massachusetts legislature passed an act in 2012 providing for the establishment of
“one or more” “Commonwealth virtual schools.”81 The statute allows various actors to apply to the
state for permission to establish such a school. They could be institutions of higher education,
nonprofits, or groups of parents or teachers, although private schools were prohibited from
applying.82 But school districts were also invited to apply.83 The district of Greenfield won that
competition; indeed, it was with a partnership with Greenfield in mind that the contractor lobbied
for the state legislation in the first instance.84 The resulting school, the Massachusetts Virtual
Academy, is available to any Massachusetts student tuition-free, but preference is given to students
in its “home” district of Greenfield.85
Or consider the Virginia Virtual Academy, a full-time, all-virtual K–6 school. It was established
under a state law, similar to Massachusetts’, that allows school districts to cooperate with providers
to provide online schools, and exempts such contracts from some rules that otherwise govern public
contracts.86 At the start of its life, the Virginia Academy was sponsored by the Carroll County School
80
81
82
83
84
85
86
Texas Virtual Academy General FAQ, http://www.k12.com/txva/faqs/general#.VRs-X-Enpmg.
Acts 2012, Chapter 379.
MASS. GENERAL LAWS CHAP. 71, § 94(b).
Id.
Layton & Brown, supra note 49.
Massachusetts Virtual Academy FAQ, http://mava.k12.com/faqs/enrollment-attendance-faqs.
Va. Laws § 22.1-212.24(D).
18
Board;87 Carroll County then withdrew and at the Academy became a joint project of the King and
Queen County Public School District and the Patrick County Public Schools. 88 Although students
within the sponsoring districts attend for free, during the Carroll County period, fewer than two
percent of its students were district residents. The rest lived elsewhere in the state. (This was one
of the reasons that Carroll County withdrew its support. 89)
Although schools like the Massachusetts and Virginia academies are district-private partnerships,
from the point of view of enrollment they are statewide schools. From the legal, organizational
point of view they may not be cybercharters, but from the perspective of parents and students they
are essentially the same. They are government-established, publicly funded virtual schools, access
to which does not depend, or depends only at the margins, on one’s district of residence.
Other states have chosen to cut out the middleman. Florida is a case in point. Florida allows its
school districts to establish their own virtual education programs.90 It also authorizes the creation
of virtual charter schools.91 But at the same time, the state created the Florida Virtual School as a
free-standing, non-geographically based school district. 92 It runs not like a school district but like
a government agency. Its Board of Trustees is appointed by the governor, not by the electorate of
any jurisdiction.93 School districts, notably, are forbidden by law from “limit[ing] student access to
courses offered through the Florida Virtual School,”94 although they can contract with the school to
provide local services.
Perhaps the most critical aspect of the Florida Virtual School is its funding, which is based nearly
entirely upon the number of enrolled students and the number of courses for which they enroll,
and, potentially under the law, from general appropriations and philanthropy. 95 This framework —
an entirely non-local, non-property-tax based mechanism for student funding — was for many
years, and continues to be, the impossible dream of state school finance reformers working in the
context of bricks-and-mortar. Yet it not only appears, but does so in Florida, hardly a dark-blue,
liberal state. Once the school is virtual, local funding simply does not make sense.
Rebecca Klein, Virginia’s First Statewide Virtual School May Be Closing, HUFFINGTON POST, May 2, 2013, 6:42 pm EDT;
Michael Alison Chandler, Virginia’s First, Largest Statewide Virtual School is Likely to Close, WASH. POST, May 1, 2013.
87
88
89
90
91
92
93
94
95
Virginia Virtual Academy, at http://www.k12.com/vava/faqs/enrollment-attendance#.VQx-Uo7F81M
Chandler, supra note 87.
FLA. STAT. § 1002.45(1)(b)
Id. § 1002.45(1)(d)
Id. § 1002.37
Id. § 1002.37(1)(c)(2).
Id. § 100.37(3)(c).
Id. § 100.37(3).
19
The Florida Virtual School shows no trace of the localism which, even ten years ago, most scholars
and reformers considered the foundation, the linchpin, of the institutional structure of American
educational inequality. The virtual academies and other cybercharters, even those whose charter is
granted by a school district, show little. Inequality, many of us argued, was a permanent part of the
landscape. But in the new and growing virtual sector, one sees almost no localism at all. Only the
locally managed cyberschools plausibly can be described as local institutions. This is a simple
consequence of the aterritorial nature of the technology.
And the virtual schools are more than non-local; they are threatening competitors for local schools
and localist districts. At the economic level, they compete for customers: will a child, and his
associated entitlement to state funding, enroll in his or her local district, or in the charter? And at
the conceptual level, they offer a competing model. Their aterritoriality is an alternative to the
district’s localism.
Given the central roles of bundling, community, and localism in sustaining and entrenching the
standard public/private binary, their undermining by virtual schooling is a clear threat to that
binary.
IMPACTS UPON HOME SCHOOLING
The impact of virtual education upon homeschooling is potentially very great. There are three
categories of effects. First, homeschool families can use virtual education to meet their educational
needs and desires. Second, virtuality facilitates unbundling, which has long been a principle and an
activity important to home schoolers. Finally, and perhaps most important in the long run,
virtuality, like charters, undermines the public/private binary which excludes homeschoolers from
things like public subsidy and access to public facilities. A more polyphonic categorization of
schools will confer upon homeschooling, with other nontraditional varieties of educational
provision, greater fiscal and political resources and greater legitimacy.
The first category is straightforward. For some homeschoolers, virtual education will not respond
to the motives for homeschooling. For example, parents concerned about the content of
curriculum, those interested in unschooling, and those who object for principled reasons to
governmental involvement in instruction will find government-prepared or sanctioned virtual
classes unsatisfactory. But for many others, virtual education could be a means or even a substitute
for classical homeschooling. If the goal is to keep children at home, to allow them to pace
themselves, or to design curricula that meet their particular interests, virtual schooling could be an
enormous boon. It is a very attractive way to provide materials and expertise to students who
remain at home. And online resources, of course, have already penetrated the homeschooling sector
very dramatically.
Second, the acceleration of virtual schooling ought to make it easier for homeschooling families to
navigate their contact with the public education system to their own advantage and the advantage
of their children. Consider the cases of students not enrolled in the full public school program by
virtue of their attendance at homeschools (or private schools) who have sought to avail themselves
20
of particular portions of the public school program in which they are interested. Thus, a
homeschooled child wants to join the public school band, or the varsity football squad. 96 Or a
student wishes to enroll in advanced chemistry, because the public school has the necessary labs
and teachers, while taking her other coursework at home. 97 When schools object, plaintiffs’
arguments are straightforward. They have the legal right to enjoy the entirety of a public school
program, and also the right to seek private alternatives to public school; surely they therefore are
entitled to part of the public school curriculum. School and school districts object that selective
disenrollment undermines schools’ efforts to create coherent instructional programs and learning
communities that have pedagogic, civic, and disciplinary coherence—not to mention school rules
that can be fairly and easily administered.
In a variation on these cases, parents have also sought the right to withdraw their children piecemeal
from the public school program in order to shield them from materials that they viewed as
objectionable.98 These requests are generally motivated by religious objections to sex education,
and to teaching about evolution and homosexuality,99 although other topics also arise. These cases
are conceptually of a piece with requests for selective enrollment public schools courses and
activities; all that differs is the magnitude of the partial public school program parents seek for their
children. The selective enrollment cases, like the selective withdrawal cases, also often but not
always involve religious motivation, given the large proportion of private and home schooling that
is religious in nature.
When these cases are litigated, courts have been unfriendly to selective enrollment, taking the view
that that public school is an all-or-nothing proposition. Courts, in other words, generally endorse
the prohibition on unbundling. (They have been somewhat more friendly to selective withdrawal,
although the more overtly religious cast of exemption requests has tempered judicial enthusiasm
for them100) Legislatures and education officials, however, have been less negative. In 23 states,
See, e.g., Bradstreet v. Sobol, 225 A.2d 175 (N.Y. App. Div. 3 Dept. 1996) (home-schooled student seeks to participate in
interscholastic sports; school rejects eligibility; court affirms). The case in this and the subsequent note are collected and
analyzed in Ralph D. Mawdsley, Parental Rights and Home Schooling: Current Home School Litigation, 135 WEST EDUC.
REPT. 313, 317–19 (1999).
96
See, e.g., Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 696–97 (CA10 1998) (home-schooled Christian
student seeks to take foreign-language classes, vocal music, and some science classes in the public school; public school
refuses because of a policy against part-time attendance; school policy upheld).
97
See Mary-Michelle Upson Hirschoff, Parents and the Public School Curriculum: Is There a Right to Have One’s Child
Excused from Objectionable Instruction?, 50 S. CAL. L. REV. 871, 873–74 & nn.3–7 (1977) (collecting incidents from the mid1970s).
98
See, e.g., Parker v. Hurley, 514 F.3d 87 (CA1 2008) (parents sue for right to prior notice and opportunity to withdraw
their children from public-school lessons involving “books that portray diverse families, including families in which both
parents are of the same gender” until the seventh grade; court denies relief); Leebaert v. Harrington, 332 F.3d 134 (CA2
2003) (parents seek to exempt child from “family life education program”).
99
100
See MARK J. YUDOF et al., EDUCATIONAL POLICY AND THE LAW 184 n.5 (2002) (collecting cases).
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homeschoolers by state statute or league rules have access to extracurricular sports, while the same
number of states denies them access.101 Local regulation is similarly diverse.
The most important long-run effect of virtuality, however, is to defeat the public/private binary and
make room in the public discourse and in its institutions for homeschooling generally. What, after
all, is the formal difference between a cyber-charter school student and a homeschooled student
who uses online courses? Both students are learning at home (or somewhere other than a school).
The difference is only that in the cyber-charter case, it is the charter that has aggregated the online
courses and produced a program of study, while in the latter case, the parent aggregates the
educational resources. But the parent, of course, chooses the charter provider; and homeschoolers
have long used off-the-shelf products as components of their instructional program. Suddenly,
therefore, a homeschooled child looks quite similar to a “public,” charter-school child.
In what sense, moreover, is an online public school different from a community of homeschoolers?
Online school districts are often managed by private providers. They have the regulatory
imprimatur of the state school system, to be sure, but homeschoolers are also required to adhere to
certain state regulatory requirements. If online education becomes a second wedge (after charter
schools) that creates a strong incentive to define privately provided educational experiences as
“public,” the distinction between public, private, and home blurs further.
So does the idea that only “public” schools can provide the kind of community necessary to
democratic education. Homeschoolers have long argued that educating children at home is entirely
consistent with both socialization and the training of democratic citizens. As society accepts virtual
education, it will have to embrace that the classic, in-person full-time model of community
associated with the traditional public school is not the only possible model of a democratic learning
community. It will be harder to reject homeschools as a legitimate, alternative models.
Finally, the modularity of online courses might help to deal with the problem of state support for
religious education, which is an oversized presence in the American private and home sectors. The
off-the-shelf nature of publicly-offered online courses substantially reduces the First Amendment
entanglement concern associated with public subsidy for the secular portions of a religiouslyinflected curriculum. These concerns have been a major motivator for the strength of the
public/private divide, and so their mitigation is likely to reduce its vigor.
In short, the introduction of virtual education at a replicable scale is very likely to make the
distinction between public and private schools—a divide long so obvious to Americans that the
terms required no definition—increasingly anachronistic. Homeschools will then have a strong case
for the claim that they should be regulated on their merits, and, in particular, that their use of state-
See Paul J. Batista, Learn at Home, Play at School, J. LEG. ASPECTS OF SPORT 213, 224–52 (2005) (state-by-state survey).
Some of these statutes allow curricular access as well. See David W. Fuller, Note, Public School Access: The Constitutional
Right of Home-Schoolers to “Opt In” to Public Schools, 82 MINN. L. REV. 1599, 1615 n.73 (1998) (surveying state statutes as of
1998).
101
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sanctioned virtual tools should be regulated and supported no differently than that of any other
school.
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