Public schools accept everyone?

Some folks in the public education community are fond of asserting that public schools have to take all comers. Writing in the Journal of School Choice ("Homeschooling, Virtual Learning, and the Eroding Public/Private Binary"), Aaron Saiger reminds us that this is not true. Mr. Saiger—formerly a law clerk for Associate Justice Ruth Bader Ginsburg, now a law professor at Fordham University—writes:

In the context of bricks-and-mortar education, districts, especially affluent ones like Fairfax [Virginia], 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 [Zelman v. Simmons-Harris. 536 U.S. 639 (2002).]. 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, until a legislative reauthorization in late 2015, the federal No Child Left Behind Act provided that children in what the Act called “failing” schools be permitted to transfer to other, more effective school districts. Again, this required that nonfailing districts accept such students. Unsurprisingly, almost none were willing. Most cited space constraints [Aikens, A. (2005). "Being choosy: An analysis of public school choice under No Child Left Behind." West Virginia Law Review, 108, 233.]. It should surprise no one that interdistrict transfer was the least utilized plank of the Act.