By Laura Page
Associate Editor, Vol. 22
The Senate confirmation hearing of Betsy DeVos, the President’s nominee for Secretary of Education, was one of the most contentious and heated in recent history. Critics contend that the billionaire Republican donor has no experience in public education—neither she nor her children attended public schools or borrowed a federal student loan, and she has no experience in education management. Proponents respond that her lack of experience and position as an outsider of the education establishment are precisely why she will be an effective Secretary of Education.
Despite her lack of formal experience, DeVos has been an outspoken advocate of “school choice,” a controversial federal program providing private school vouchers and charter school access to parents whose children attend low-performing schools. DeVos said that if confirmed, she will be a “strong advocate for great public schools.” But when public schools are “troubled, or unsafe, or not a good fit for a child,” she said, parents should have a “right to enroll their child in a high-quality alternative.”
School choice has been heralded as a defense of parents’ rights to define their children’s education, but critics of the policy raise significant fears around educational inequity—specifically, that allowing parents the opportunity to “shop” for schools will lead to increased class and racial segregation in public schools. The fear that such freedom-of-choice plans facilitate racial segregation is not new, however.  Since the landmark decision in Brown v. Board  mandating the integration of public schools, the American education system has struggled to make the ideal of educational equity a reality, considering options like school choice and other reforms as possible solutions to school segregation. As recently as 2016, the Government Accountability Office issued a report highlighting the increasing segregation in public schools. The report noted that:
The proportion of schools segregated by race and class—where more than 75 percent of children receive free or reduced-price lunch and more than 75 percent are black or Hispanic—climbed from 9 percent to 16 percent of schools between 2001 and 2014. The number of the most intensively segregated schools—with more than 90 percent of low-income students and students of color—more than doubled over that period.
Though it is not the only factor at play, critics worry that expanded parent choice and the availability of private school vouchers will lead to further class stratification and increased racial segregation.
The governance structure of such freedom-of-choice plans is partly to blame, as higher discretion afforded to both parents and schools leads to unequal outcomes in the admissions process. School choice relies on the market system of educational management, in which parents choose the schools which appeal to their tastes, and schools select which students will attend. “Research shows that free-market school choice, without diversity as a stated goal of a program, tends to exacerbate segregation and inequality in schools,” notes Halley Potter, a former charter school teacher and co-author of A Smarter Charter: Finding What Works for Charter Schools and Public Education. “The expansion of vouchers is particularly worrisome because of many private schools’ ability to pick and choose students based on academics, behavior, or even religion or sexuality.” The influence of this wide discretion is striking. As the UCLA Civil Rights Project reported in 2010:
While segregation for blacks among all public schools has been increasing for nearly two decades, black students in charter schools are far more likely than their traditional public school counterparts to be educated in intensely segregated settings. At the national level, seventy percent of black charter school students attend intensely segregated minority charter schools (which enroll 90-100% of students from under-represented minority backgrounds), or twice as many as the share of intensely segregated black students in traditional public schools. Some charter schools enrolled populations where 99% of the students were from under-represented minority backgrounds. Forty-three percent of black charter school students attended these extremely segregated minority schools, a percentage which was, by far, the highest of any other racial group, and nearly three times as high as black students in traditional public schools.
It is this free-market structure allowing wide discretion for both schools and parents that critics worry will increase racial and class stratification; while school choice may improve the quality of education in some individual schools, it does so at the expense of educational equity for all students.
In addition to the possibility of discrimination in parent and school discretion, critics posit that the free-market system may not be as “free” as it appears. Eve Ewing, a sociologist of race and education at the University of Chicago School of Social Service Administration, articulates the criticism in terms of equity: “The notion of [school] ‘choice’ suggests that all options are on the table for all parents, but when resources like transportation, childcare, and information access are unequally distributed, the choices on the table are in fact very constrained.” Thus, while school choice allows some parents the ability to “shop” for the school that best fits their child’s needs, the parent who lacks the time and resources to seek out such information—and in turn, her child—is not afforded an equal opportunity to evaluate educational options and select the best school for her child.
Whether DeVos will prioritize an expansion of school choice policies as Secretary of Education remains to be seen. If confirmed, she will have substantial power to shape the focus of the Department of Education, and if her confirmation hearing is any indication, America’s public classrooms may look much less diverse in the coming years.
 Education Secretary Confirmation Hearing, C-Span, (Jan. 17, 2017), https://www.c-span.org/video/?421224-1/education-secretary-nominee-betsy-devos-testifies-confirmation-hearing.
 Warren Challenges DeVos on Personal Experience, CNN Politics (Jan. 20, 2017), http://www.cnn.com/videos/politics/2017/01/18/betsy-devos-elizabeth-warren-confirmation-hearing-sot.cnn.
 Cory Turner, At DeVos’ Senate Hearing, Questions of Choice, Charters, ‘Other Options,’ NPR (Jan. 17, 2017, 4:53 PM), http://www.npr.org/sections/ed/2017/01/17/510274817/watch-live-betsy-devos-secretary-of-education-confirmation-hearing.
 Nat’l Conference of State Legislatures, School Vouchers, http://www.ncsl.org/research/education/school-choice-vouchers.aspx.
 Emma Brown, Moriah Balingit & Ed O’Keefe, Betsy DeVos, Trump’s Education Pick, Lauded as Bold Reformer, Called Unfit for Job, Wash. Post, (Jan. 17, 2017), https://www.washingtonpost.com/local/education/senators-to-scrutinize-betsy-devos-trumps-pick-for-education-secretary/2017/01/17/3a0e6168-da8f-11e6-9a36-1d296534b31e_story.html.
 UCLA, The Civil Rights Project (2010), Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards, https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/choice-without-equity-2009-report.
 See generally Green v. Cty. Sch. Bd., 391 U.S. 430 (1968) (freedom-of-choice desegregation plans unconstitutionally preserve segregated conditions).
 Brown v. Bd. Of Educ. of Topeka, 347 U.S. 483 (1954).
 Emma Brown, On the Anniversary of Brown v. Board, New Evidence that U.S. Schools are Resegregating, Wash. Post (May 17, 2016), https://www.washingtonpost.com/news/education/wp/2016/05/17/on-the-anniversary-of-brown-v-board-new-evidence-that-u-s-schools-are-resegregating/?utm_term=.84c0b2fb8e6a.
 James S. Liebman, Voice, Not Choice, 101 Yale L.J. 259, 280 (1991-1992) (reviewing John E. Chubb & Terry M. Moe, Politics, Markets, and America’s Schools (1990)).
 Id. at 284.
 George Joseph, What Betsy DeVos Didn’t Say About School Choice, The Atlantic: Citylab, (Jan. 19, 2017), http://www.citylab.com/politics/2017/01/what-betsy-devos-didnt-say-about-school-choice/513269/.
 UCLA, The Civil Rights Project, supra note 7.
 Joseph, supra note 15.