WHILE THE SUPREME COURT may have recently affirmed the constitutionality of school choice, states and districts across the country are doing their level best to undermine what few options are presently available to children in failing schools. Despite a new congressional mandate that youngsters enrolled in failing "Title I" schools may exit for other public (and charter) schools, many such children continue to be neglected. When Congress overhauled the Title I program last year in the "No Child Left Behind" Act, it included an important provision: If a "Title I" school fails for two straight years to make adequate progress toward its state's academic standards, the local school system must provide its pupils with "public school choice" and may use some of its federal dollars to pay for the transportation. In President Bush's original formulation, a student's choices included private schools and public schools in other districts. But Congress instantly balked at "vouchers" and the White House surrendered. Then the education establishment successfully pressed lawmakers to confine children's options to public schools within the same district. Hence Chicago children have no right to enroll in Winnetka's excellent schools nor Los Angeles youngsters in those of Beverly Hills. Their choices are limited to schools run by their present systems (and charter schools within district boundaries). That does not do much for students in faltering systems that abound in failing schools and boast few good ones. But once the lobbyists were finished, that's as far as Congress would go. Except for one wrinkle that was barely noticed when the bill was signed in January: The school-choice provision applies right now--today, school year 2002-3--to more than 8,600 Title I schools that have already lingered for two years or longer on their states' lists of education failures. School districts across America were staggered to learn this summer that they must immediately provide public school options for those millions of youngsters. How are they responding? A handful are behaving as they should. District of Columbia superintendent Paul Vance doesn't like this provision--he fears it will "drain" the abler students from the weaker schools in his troubled system--but is nonetheless seeking to clear 2,000 slots for youngsters transferring from the city's 15 worst-performing schools. "The law is the law," he told the Washington Post. "My job is to implement it." Across the nation, however, many states and districts are resisting this school-choice requirement, deferring until it's too late for kids to switch, ignoring the law entirely, or reinterpreting it in ways that suit them. Thus Education Week reports that "relatively few students will parachute out of low-performing schools this fall." Many stratagems are at work to frustrate the new federal rule. In a matter of weeks, Ohio whittled its list of failing Title I schools from 760 to 212--not by improving the others but by fiddling with test scores and criteria. Rural South Carolina districts decided that they have so few schools that there's really nothing to choose among--and it's too much bother and expense to send youngsters to schools operated by nearby districts (which the law mandates in such situations "to the extent practicable"). Kentucky has decided to wait until mid-September to finalize its list of eligible schools. George W. Bush's Texas is holding off until the end of August. By then, of course, the school year will be well underway in those two states and fewer families will want to move their children. In some cases, it's not clear whether the district's meager response is due entirely to foot-dragging or to genuine problems of capacity. Los Angeles is pleading overcrowded schools. In Baltimore, where 30,000 children are enrolled in failing schools, the district says it has just 200 openings in better ones. In Chicago, a staggering 125,000 kids in 179 schools were originally deemed eligible to transfer but the system has somehow cut that list to 50--and is now "pairing" them with other schools rather than giving students a full range of options. (It says that all 179 schools will get extra help with tutoring and suchlike.) Vance's Washington, D.C., is providing pupils with four alternative schools, but has excluded many of the District's highest-performing elementary schools. Notwithstanding such shenanigans, thousands of youngsters are changing schools under the new federal requirement, even in such upscale places as Montgomery County, Maryland. Denver estimates that almost 5,000 students will leave their neighborhood schools, though some are choosing other low-performing schools. (Down the interstate in Colorado Springs, principals of exit-eligible schools wrote personal letters to parents pleading with them not to leave.) And some families are making these moves for reasons having more to do with playgrounds and personalities than academic achievement. "It's hard to quantify why they picked what they picked," remarked the head of Denver's Title I program. When all is said and done, it's just a few thousand poor children, not millions, who are succeeding in escaping bad schools for better ones this fall, never mind the No Child Left Behind Act. Mainly what we're seeing is widespread flouting of the law's intent--and a federal government that can do little to make resistant school systems change their ways. Though the Bush administration has revived its interest in school choice--filing an important Supreme Court brief in the Cleveland case and proposing tax credits for school expenses--its Education Department has few enforcement tools at times like this. Nobody is about to cut off Title I funds to districts that dawdle over school choice. In fact, No Child Left Behind authorizes the withholding only of a smidgen of administrative money from states and districts that do not fulfill its mandates. Nor do any rewards--save perhaps in Heaven--await those that conscientiously provide solid alternatives for their students. What we're really seeing, once again, is how the public education establishment despises school choice, how little it will bestir itself to assist poor families to gain access to better schools, and the hardball tactics it deploys to keep lawmakers from adding more exit doors. The lesson: Congress can paste whatever label it wishes on its shiny new statute, but when it entrusts a choice program to the same people who brought us 8,600 failed schools in the first place, it leaves millions of children behind. Chester E. Finn Jr. is a fellow at the Manhattan Institute and president of the Thomas B. Fordham Foundation.
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