In “Opening Doors for School Choice,” Frederick Hess offers valuable prudential, diagnostic, and prescriptive insights for education reformers and parental-choice advocates at what many, including myself, have lauded as a revolutionary moment in the history of US K-12 education policy.

To begin, he cautions against employing the rhetoric of revolution, warning that “many apolitical parents who just want good options for their kids may be alienated by reformers who seem like revolutionaries.” As he reminds reformers, most American parents—at least those with the means to vote with their feet and move to good school districts—are generally happy with their kids’ public schools. Perhaps he’s right. Personally, I’ve often wondered what my family in suburban Kansas City would think of my Twitter feed.

But rhetoric aside, we are living in a revolutionary moment. The momentum for parental choice appears to have, as Michael McShane recently argued, reached “escape velocity.” In the last year alone, six states (Arizona, Arkansas, Iowa, Florida, Utah, and West Virginia) have adopted expansive education savings account (“ESA”) programs, which provide families with resources that can be used on a wide array of qualified educational expenses, including private school tuition as well as instructional materials for homeschool, micro-schools and learning pods, online classes, tutoring, and educational therapies. And several more states seem poised to embrace expansive parental-choice policies in the weeks and months ahead.

These programs depart from earlier, more-incremental, parental-choice reforms in two significant ways. First, they are more than private-school-choice programs (like vouchers). They are true parental-choice programs, enabling parents to spend the public resources allocated for their children’s education for purposes other than tuition at a private school. And second, they extend eligibility to all (or almost all) students, in contrast to almost all programs before last year, which were either means-tested or restricted to students with disabilities. The radical nature of these reforms would have made them beyond the wildest dreams of the choice proponents a few years—or even months—ago.

I agree with Hess’s diagnostic takes on why states are embracing universal parental choice at this particular moment. First, the disruptions of COVID, including frustration with prolonged school closures and mediocre (at best) remote instruction, combined with frustration over public schools’ curricular decisions (including the ruckus over critical race theory and the efforts of some districts to eliminate honors and advanced course offerings) has undermined trust in public schools, leading parents to demand options for their kids. Second, advocates’ strategies have shifted, away from targeted reforms rooted in the moral imperative of rescuing disadvantaged children from subpar schools to broader, more inclusive, arguments for empowering all parents to take control over their children’s education. The latter arguments appear to be carrying the reforms across the legislative finish line.

Prescriptively, Hess argues for a system where educational “choice is the norm, not the exception.” He also urges “a broader, more practical focus” that moves away from what he characterizes as the “downright weird” fact that the debates about parental choice have “narrowly” centered around students changing schools—instead of the “full panoply of choices that get made.” (To be honest, I don’t find the latter at all weird, especially given the realities of American education policy until—well—a few months ago. I do find it a bit weird that Hess at once criticizes those who have been laboring in the parental-choice trenches for being too incremental while at the same time accusing them of being revolutionaries.) 

That said, I wholeheartedly endorse making choice “the norm, not the exception.” I also agree that it is prudent to make the case for parental choice inclusive of, but not limited to, the need to rescue at-risk kids from schools that fail them. The “rescue mission” message resonates deeply with me, certainly far more than early choice advocates’ excessive focus on efficiency and market competition. But the message of parental empowerment more broadly is carrying the day politically. Apparently, as Hess suggests, “even where there are natural limits on the appeal of school choice, that doesn’t necessarily limit the broader appeal of educational choice.” In light of these realities, he is probably also right that ESAs are “the optimal tool” for advancing the parental-choice agenda because they “can meet the needs of families seeking to escape from unsafe, horrific schools and also those simply seeking a different mix of educational services.”

It is less clear to me, however, that ESAs also represent a “more practical” approach to education reform. True, ESAs may respond to the practical needs of many American families. For example, parents who generally are satisfied with their children’s public high school might prefer to opt out of certain elements of the school’s academic program—sex ed, science, math, art—and use public funds to purchase an alternative from a private provider. Likewise, homeschooling parents might wish to opt in to courses at brick-and-mortar schools, or to band together to form a learning pod or a micro-school. These latter options, as Hess points out, may be especially appealing to families in rural areas without private schools.

But implementing broad parental-choice policies, like ESAs (which, to be clear, I wholeheartedly support) may well prove a practical nightmare. Private-school-choice programs like vouchers aren’t perfect, but they are relatively easy for schools and parents to navigate. An eligible child enrolls at a participating school, the school notifies the state, and the state sends the child’s scholarship. ESAs are far more complicated, especially when used for expenses other than private-school tuition. Accessing ESA funds and accounting for ESA expenditures can be overwhelming for parents and regulators alike. There are early reports of implementation hiccups in Arizona, the first state to bring a large-scale universal ESA program online. At one point early this year, the state education superintendent acknowledged, “There were 171,000 parents who had applied and who had not heard back, some of them for many months. … There were tutors who had serious financial problems because they hadn’t been paid. We had a school that was in the process of applying for a loan because it couldn’t pay its bills.” All states with new universal ESA programs will face these challenges; one of them—Florida—has more school-aged children than the other five combined.

Hess’s most-important contribution, in my view, is to remind reformers of the hard work involved in implementing choice programs. He chastises parental-choice proponents for assuming that injecting market competition into our previously monopolistic educational-policy landscape will prove, in the words of John Chubb and Terry Moe, “a panacea.” He’s right to do so. On the ground, as I have observed elsewhere, parental-choice programs have fallen short of their transformational potential on a number of fronts: Academic studies find only marginal gains in standardized test scores; participation rates lag below program capacity (and are declining in some states); faith-based (and especially Catholic) schools continue to close in states with private-school choice; and choice funds mostly are used to fill empty seats in existing schools rather than to catalyze the creation of new schools and school systems.

In a recent report, I argue that, while some of these implementation challenges result from poor program design—for example, low scholarship amounts and complex and confusing eligibility restrictions—not all do. Some implementation failures are self-inflicted. Just two such examples include advocates’ tendency to declare victory when a program is enacted, rather than attending to the challenges of implementation, and participating schools’ failure to leverage public funds to improve academically and invest in the work needed to remediate program participants.

As Hess reminds us, Friedrich Hayek’s Nobel lecture “encouraged policymakers to think of themselves as gardeners—creating the conditions in which enterprise could flourish.” This is a useful image for reformers and policymakers about to undertake the heavy lifting of implementing universal ESAs. Hundreds of thousands of students are about to become eligible to participate in these programs, and most states haven’t even begun to till the ESA garden, let alone engage in the preliminary gardening questions: Do we want an orderly, perfectly manicured, English garden or a field of wildflowers? If the latter, how do we draw the line between wildflowers and weeds? Consider, for example, the recent kerfuffle over questionable expenditures in Arizona’s ESA program: Is the use of ESA funds for tickets to Sea World fraud? Or a field trip?

As ESAs come online, Hess’s clear-eyed caution that “choice alone is just a start … fulfilling its promise requires much more” is critical. As I recently argued, attention to the nitty gritty details of implementation is critical to the success of parental-choice programs—and especially ESA programs. Customized education sounds wonderful in theory, but I find it daunting to consider how my husband and I might go about it—and we are both law professors. One reason to expect that most ESA funds will be used, at least in the short term, for private-school tuition, is that many parents have no clue what the alternatives are. As great as they sound, for example, most parents have never heard of a “micro-school” or a “learning pod.” I fear that many parents will take one look at the ESA portal and throw their hands up in frustration.

As Michael McShane and I will explore in a forthcoming report, if ESAs are to succeed, all hands must be on the implementation deck now. States need to engage private program administrators—as all programs allow and some require—to operate the program platforms that process financial transactions, to answer parents’ questions promptly (and consistently), and to ensure that providers are paid without delay. Regulators must act quickly to set the programmatic ground rules. These rules should make clear, to the extent possible, which expenses are permissible and impermissible, thereby minimizing the need for parents and providers to seek constant clarification. Regulators’ primary goals ought to be empowering parents and stimulating innovation; they should avoid the temptation to exercise excessive caution in order to minimize the risk of fraud. There is, to be sure, such a risk, but it can and should be addressed through periodic audits. Insisting on the pre-approval of most expenses will squelch innovation and drive frustrated parents and providers away.

For their part, participating schools must recruit and welcome new students, especially low-income students. They must be clear-eyed about their own academic limitations and resolve to attend to the challenges of remediating students who may have fallen behind (especially in this post-pandemic era). New schools, school networks, and schooling models need to be developed leveraging ESA resources. Perhaps most importantly, parents need more and better information. Details about program rules, the mechanics of participating, and the universe of available educational options should be set forth in easy-to-understand, user-friendly handbooks and videos. Parental-choice advocates should actively engage in the challenge of informing parents about their options—especially options other than private schools and homeschooling—and pairing parents with providers. And, finally, philanthropists should engage and support all of these efforts with their time, talent, and treasure.

As a young attorney in the 1990s, I helped defend the first modern voucher programs (in Milwaukee and Cleveland) in court against the argument that allowing children to use public funds at religious schools violated the First Amendment’s Establishment Clause. When the US Supreme Court rejected this argument two decades ago, I wept. But it immediately became apparent that the hard work was just beginning—that clearing the federal constitutional path for choice was a necessary but insufficient step toward making it a reality. And so began a painstaking slog through state legislatures, as reformers slowly, incrementally, began securing more options for more children. The past few months, I’ve found myself crying each time incrementalism gives way to universalism in another state. Then, just as before, my joy is followed by a clear-eyed, and daunting, realization that the hard work is just beginning.

On the last day of the Constitutional Convention, Benjamin Franklin reportedly told a passerby that the delegates had created, “a republic, if you can keep it.” We are being given parental choice—loads of it. Now it’s up to us to keep it. Heeding Hess’s advice about attending to the messiness of making choice actually work in the lives of real families is a good place to start. Now is the time to till the garden of choice.