BY: Bruno Behrend | Heartland Institute

In 2010, a small nonprofit organization promoted, and succeeded in helping pass, the first “parent trigger” law in California. The law created a petition process through which parents whose children attend a substandard school could change the school’s management. Since then, according to the National Conference on State Legislatures (NCSL), parent trigger laws have been filed in 25 states. Seven of these states have passed some version of a parent trigger.

Basically, if half the parents whose children attend a failing public school sign a petition requesting reform, the school must shut down, become a charter school, or undergo one of two types of other reform. The concept was created by the Los Angeles Parents Union, a group of self-described progressives led by Democrat Ben Austin. The parent trigger law passed by just one vote in the California Senate and one vote in the Assembly.

As expected, these laws have been criticized by school boards and superintendents, who don’t want to lose control of schools or students, regardless of how poorly the district does its job. State legislators, leery of union, district, and administrator political clout, have not been supportive of a child’s putative “right” to a good education.

With that in mind, ask yourself this question: “At what point should a concerned parent have a cause of action against the government for failure to educate their child?” If they should have a cause of action, should they sue the state or their local district? Usually, courts consider the state as being responsible for education policy. However, when a child doesn’t receive a good education, it is usually the local district or school that has failed to deliver.

As you wrestle with these questions, it becomes clear a child’s “right” to a good education is an illusion unless courts are willing to enforce those rights. That is why the time has come for a judicial parent trigger, where parents simply demand courts enforce rights, regardless of whether the state has passed a parent trigger law.

Precedents Established

This idea should not be considered controversial, as the apparatus and precedent for a judicial parent trigger are already in place. First, special education is one area where parents are actively encouraged to exercise “rights” under special education legislation. An internet search for “special education law review” will yield a list of lawsuits from across the nation. If special education students have a right to an appropriate education, don’t other kids have the same right?

The next set of scaffolding supporting a judicial parent trigger is the recent court decision in California in which the judge ruled teacher tenure laws deprived students of their right to an education under the state Constitution and violated their civil rights. This case is being appealed by unions and the California political culture they purchased, but in the meantime it sets a powerful precedent establishing education policy should focus on students’ access to education, and not the financial interests of public employees.

Another important element setting the stage for empowering parents to exercise rights is the advent of independent charter schools, which have grown in number over the past few decades. Once one set of children has access to a better school, it becomes increasingly difficult for the system to deny that option to children in the next block or ward.

For example, in Indianapolis a new law grants specific schools autonomy from district control, allowing the school leaders more control over curriculum and relief from collective bargaining agreements. Early results indicate these schools improve outcomes for students, with positive results developing very quickly.

Making the Right a Reality

Considering all the above-mentioned factors, it’s clear the time is ripe for parents to band together as plaintiffs and demand their children get the same quality of education that others in their city and state are getting. It is time for school districts incapable of providing a quality education (despite more than adequate financial resources) to lose education infrastructure, funding, and students to the schools, teachers, and principals that are capable of providing a quality education.

The benefits of this approach are obvious. First, it circumvents the slow and compromised process inherent in waiting for legislation. Second, the action of filing a suit illustrates parental involvement. This negates the excuse parent trigger opponents use when they argue parents aren’t involved enough to decide school policy.

Finally, as more education options are made available to some but denied to others, the moral legitimacy of the system is increasingly open to judicial attack. If one area of Indianapolis has access to a good school, but another only one mile away does not, such a disparity should affect the conscience of the populace, as well as that of judges. This should lead to an increasing disregard for the increasingly weak arguments of the opponents of parental empowerment.

The time has come for parents to leapfrog the legislative process and stop waiting for stubborn legislators and governors to implement robust parent empowerment legislation. If the American child has a right to an education, that right has to be real, not illusory. If it takes a set of court cases to enforce those rights, the time to file them has come.

Bruno Behrend (bbehrend@heartland.org) is a senior fellow for education policy at The Heartland Institute.

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