Brandon Ruder is a communications intern at EdChoice, with his summer 2025 experience sponsored by the Stephenson Institute. His post originally appeared at EdChoice.

Does school choice have racist roots? Critics claim it does, citing how Southern states misused vouchers after the 1954 Brown v. Board of Education Supreme Court decision to maintain segregation. But is that the full story? 

In Episode 6 of the EdChoice Chats podcast, Michael Bindas, a Senior Attorney at the Institute for Justice (IJ), joins EdChoice’s Director of National Research, Mike McShane, to debunk this myth, drawing from his paper School Choice is Racist (& Other Myths). Bindas argues that school choice predates these racist misuses and that today’s programs promote integration, not segregation. 

To understand the racism claim, Bindas explores how opposition to school choice evolved. Bindas thinks about two periods of the movement: the broader school choice movement and the modern school choice movement. Bindas believes that this split happened in 1990 with the Milwaukee Parental Choice Program. “The public school establishments, as I like to call them, were determined to prevent these programs from ever being enacted,” said Bindas. 

Initially, the controversy surrounding school choice focused more on religion than race.  According to Bindas, opponents argued that allowing students to use these programs to attend religious schools violated the Establishment Clause of the First Amendment of the U.S. Constitution (which prohibits Congress from establishing or favoring a religion, often interpreted to ensure the separation of church and state). 

Opponents also argued that these programs violated the Blaine Amendments (state constitutions that denied the use of state funds for religious schools) and state constitutional provisions that stopped the public funding of religious and sectarian schools, emphasizing this idea of limiting choice using religion as their primary weapon. 

While this argument was the go-to for school choice opposition for many years, it became increasingly obvious that it wasn’t going to work.  

“In 2002, the U.S. Supreme Court held a case called Zelman v. Simmons-Harris that decided it’s perfectly fine to have school choice programs that include religious options, so long as the program is neutral between religion and non-religion and operates based on the choice of parents,” said Bindas, and added that this decision “took the Establishment Clause issue off the table.”  

Following the Zelman v. Simmons-Harris case, which dealt with Ohio voucher programs allowing parents to use them for religious schools, several Supreme Court cases and lawsuits backfired on the “public school establishments.” These lawsuits and cases, paired with the Espinoza and Carson decisions which decided that a state cannot exclude religious schools from school choice programs as it violates the Free Exercise Clause of the First Amendment (Espinoza), and that you cannot distinguish between religious schools and schools that teach through religious lenses (Carson), made it clear that the religious argument was no longer viable for those in opposition to school choice. 

In 2017, the Center for American Progress published a paper that, Bindas said, “talks about the supposed racist origins of school choice as a concept or as a racist origins of school choice and the supposedly racist or segregative effects that these programs have today,” marking the point at which “the public school establishment really pivoted from religion to focusing on race.” 

The actions that took place by Southern states surrounding Brown v. Board of Education hold a “kernel of truth,” said Bindas, due to these states using vouchers to maintain segregation by closing public schools and funding discriminatory private schools. Bindas said, “This was a horrible episode in the 1950s and early 1960s, where the concept of school choice was used for horrible, horrible ends.” 

Yet Bindas pushes back, saying, “That’s not the origin story of school choice; school choice as an idea preceded Brown v. Board of Education by many years, in fact, by almost a couple of centuries. And number two, I would stress that these kinds of devious means that the Southern segregationists were employing to thwart the Brown decision weren’t really choice programs at all.”  

These vouchers were often used in combination with the closing of public schools, leaving Black students with no public school to attend, no integrated public school, and no private schools. “So, it left Black students with no choice at all,” Bindas said. “To claim that this is the origin story of choice is just false because the whole purpose of these schemes was to deny choice.” Instead, Bindas believes that the origin of school choice can be seen in the writings of foundational classical liberal thinkers such as Adam Smith, Thomas Paine, and John Stuart Mill (Bindas, 2024). Furthermore, the oldest US choice programs in Maine and Vermont were founded in the 1800s, preceding civil rights conflicts.  

As times have progressed, so have school choice programs. Today, no program is allowed to discriminate based on race, leaving no room for arguments that they have the same racial motivations as those in the 1950s and 1960s. Opponents no longer argue about the motives of school choice programs but their effects. Bindas explains that opponents often argue that school choice programs are used by more white students than Black students to leave public schools, leading to increased segregation in those schools as white students “flee” through these programs. 

Yet, this is simply not true. Bindas said, “The studies that have been done overwhelmingly show, number one, that choice programs lead to a more integrated environment for the children who use these programs,” and although there are fewer studies, they “still show that these programs also have an integrative effect on the public schools that children leave.” 

Bindas, having a passion for law and spreading the truth, said, “One of the purposes of writing this paper was, as courts are forced to grapple with this issue, I wanted to tell the historical truth and the empirical truth about these programs… I really wanted to put something out there that courts could certainly turn to, but just as importantly, that the public could turn to.” 

This podcast challenges anti-school choice arguments described in Bindas’ paper. From exploring the roots of school choice to the present day, he proves that not only does school choice predate the racist misuse following Brown v. Board of Education, but it also helps integrate the school experience for those who use these programs and public schools.  

To learn more, tune in to Episode 6 of the EdChoice Chats podcast featuring Michael Bindas and read his paper at the Syracuse Law Review.