Most people know the story of the boy who was rescuing sea stars that had washed up on a beach by throwing them back into the ocean. When a man scoffed to the boy that his efforts didn’t make a difference since he couldn’t save all of them, the boy tossed another sea star back into the ocean and replied, “It made a difference to that one.” The little‐​known ending to the story is that the boy was sued by the Southern Poverty Law Center for violating the Constitution’s Equal Protection clause.


Sadly, this is only a slight exaggeration. Earlier this week, the Southern Poverty Law Center filed a federal lawsuit contending that Alabama’s new scholarship tax credit program violates the Equal Protection clause and harms the low‐​income students attending failing public schools whom the law is intended to help:

[SPLC] President Richard Cohen said the new Alabama Accountability Act will take millions away from public schools and will make the failing schools worse than they are now. He said the law was promoted by Republican Gov. Robert Bentley as giving students a way out of failing schools. 


“It’s a lie. Our clients do not have a way out of the failing schools that they are in,” he said.


The Montgomery‐​based law center sued on the opening day of classes for most public schools in Alabama. The suit focuses on a part of the law that allows families with children in Alabama’s 78 failing public schools to move them to a non‐​failing public school or to a private school that participates in the program. They can get a state tax credit of about $3,500 annually to help cover private school costs.


The lawsuit was filed on behalf of eight plaintiffs who say that they can’t afford to go to private schools and that the non‐​failing public schools are not accessible. The lawsuit raises equal protection issues.


One of the eight plaintiffs, Mariah Russaw, said she couldn’t afford the transportation costs even if her 12‐​year‐​old grandson, J.R., could leave Barbour County Junior High School in Clayton. All junior highs in the Barbour County school system are on the failing list. The nearest non‐​failing public school is 19 miles away in Pike County. The nearest private school is about 30 miles away, but it is not participating in the program.


The 62‐​year‐​old grandmother said it wouldn’t matter if the private school were participating. “I cannot afford to transport him to another school,” she said.

In short, SPLC argues that if the law can’t rescue every child from a failing school, then it shouldn’t be allowed to rescue any child. Not only would this line of reasoning hobble almost every government effort to incrementally address any problem, but the argument also rests on a misunderstanding of the status quo and the law’s likely impact.


The SPLC lawsuit claims that the law “creates two classes of students assigned to failing schools – those who can escape because of their parents’ income or where they live and those, like the Plaintiffs here, who cannot.” In fact, those two classes of students already exist. In our existing education system, low‐​income families are trapped in failing schools while wealthier families can afford either to live in districts with better public schools or to send their children to private school. The scholarship tax credit program is too limited to solve all the existing inequities, but it moves more students out of the first category and into the second. In other words, by expanding opportunities to low‐​income families, it makes an already unequal education system more equal.


Moreover, there is no evidence the program does harm to students who remain in public schools. The SPLC claims that the failing public schools are “likely to deteriorate further as their funding is continually diminished” as a result of students fleeing from those schools. But a mere assertion that harm is “likely” doesn’t cut it. Had the SPLC consulted the research literature instead of their fevered imaginations, they would have discovered that 22 of 23 studies of school choice programs found that they have positive impact on public school performance. The last study found no visible impact.


In other words, the increased choice and competition help both the students who participate in the program and those students who remain in their assigned public schools. Striking down the program would thus make matters worse for the litigants and other families like them, not better. Expanding the program would improve outcomes even further. If the SPLC is truly motivated by a desire to help low‐​income families, it should drop its lawsuit and join the effort to expand educational options. There are lots of sea stars left on the beach and they could use a hand.