Supreme Court Could Put An End To Public School Monopolies

Recently the Supreme Court decided to take up a monopoly case: America’s public schools. Of course, that’s not how this case will be portrayed — especially by those fighting to sustain the monopoly that has cost Americans so much. Yet that is what this case is truly about: state-established monopoly versus family-chosen competition.

On Jan. 24, the Supreme Court agreed to take up a case in which Oklahoma’s Supreme Court ruled that the state “can exclude privately owned and operated religious charter schools from its charter-school program by enforcing state-law bans on ‘sectarian’ and religiously affiliated charter schools. The court also held that a charter school engages in state action for constitutional purposes when it contracts with the state to provide publicly funded education.” 

The questions before the U.S. Supreme Court are whether being a charter school makes it part of the state and whether the state of Oklahoma can bar a religious charter school on the grounds that it violates the Constitution’s First Amendment, which states regarding religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Arguing that allowing state funds to be used by a religious charter school equates to the state of Oklahoma establishing a religion is ludicrous. It simply affirms how far the First Amendment has been turned from its original intent to strike at religion in America.

However, while a war has been waged against a nonexistent monopoly threat, the state did establish a monopoly over primary and secondary education in America. The two are not unrelated. 

For a long time, parochial schools were the only alternative to public institutions. By reflexively and effectively banning them from public funding, a virtual monopoly was erected — to the detriment of America’s families and the nation’s education. 

Such an outcome should hardly be surprising. Monopolies cannot exist without government enforcement — in this case via the massive funding that it lavishes. According to the Office of Management and Budget’s Historical Tables, federal funding for elementary, secondary, and vocational education rose from $482 million in 1962 to an estimated $50.1 billion in 2021. And this does not account for the state funds that public schools receive.

Although the means of enforcing a monopoly vary — competitors’ outright exclusion, excessively onerous costs to enter a market, etc. — the results of sustained monopoly are always the same: increasing costs and decreasing performance. Without competition, a monopoly has little need to control costs because it can simply pass these on to consumers; without choices, consumers have few options but to pay them.

Families had a Hobson’s Choice when it came to educating their children at the primary and secondary school level in America. They could pay twice — footing the bill for private school tuition on top of the taxes they paid — or move once.

Only recently has this state-established educational monopoly been significantly challenged by competition. Broadly, the reasons are twofold: the declining quality of public school education and the courts’ increasing willingness to let private schools gain access to government funding through families’ participation in them. 

Covid-19 only accelerated what had been a growing trend. It did so because it underscored the onerousness of the public school monopoly. Not only were children locked out of the schools themselves, but families were locked into the schools where they lived. Remote learning became the norm, despite really meaning that learning was only a remote possibility. In addition to being locked out, families were shut out by increasingly radical school boards that put indoctrination over education. 

Evidence of poorly performing public schools is gargantuan. A September 2024 Harvard study found:

Sometimes, panics are overblown. Sometimes, older generations are just freaking out about the youngs, as they have since time immemorial. That’s not the case, unfortunately, with kids’ learning right now, more than four years after the pandemic shuttered classrooms and disrupted the lives of millions of children. The effects were seen almost immediately, as students’ performance in reading and math began to dip far below pre-pandemic norms, worrying educators and families around the country.

Citing an Arizona State study, Harvard summarized: “The average American student is ‘less than halfway to a full academic recovery’ from the effects of the pandemic.”

The 74 reported just days ago that results from the latest assessment data are worse: “Newly released scores from the National Assessment of Educational Progress, often referred to as the Nation’s Report Card, show that both fourth and eighth graders have lost ground in reading — not just compared with the status quo of 2019, but also the most recent round of the exam, which was conducted during the heart of the pandemic. Math scores were flat for eighth graders and up slightly for fourth graders, but those gains were predominantly driven by the progress of high-performing students.”

No wonder that school choice has grown rapidly, and like choice in any form, the more consumers get it, the more they want it. Last August, the America First Policy Institute wrote: “Currently, there are 75 school choice programs in 34 states, with 18 states offering Educational Savings Accounts (ESAs). In just three years, the number of states offering universal school choice has risen from 0 to 12, and 22 other states have passed school choice expansion bills.” The 74 recently reported that 60 percent of parents are contemplating changing their children’s schools, while Texas appears poised to implement school choice in that state. 

The Supreme Court has a case before it that could strike another blow at “state establishment” — not of monopoly in religion, but in America’s primary and secondary education. It should do so.

J.T. Young was a professional staffer in the House and Senate from 1987-2000, served in the Department of Treasury and Office of Management and Budget from 2001-2004, and was director of government relations for a Fortune 20 company from 2004-2023.