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We go to Alabama now, where most public school students returned to class today. And if they happen to attend a school that's considered failing, their parents can take advantage of a new tax break. It would help pay for the switch to private school or a better public school. But as NPR's Debbie Elliott reports, the new law has plenty of critics, including parents in some rural counties who have asked a federal court to block it.

DEBBIE ELLIOTT, BYLINE: Mariah Russaw wants her grandson, J.R., to finish high school, something the 62-year-old woman from Clayton, Alabama says she never accomplished, despite her best effort.

MARIAH RUSSAW: I'd sneak away and catch the bus and go to school, and Dad come right on to school and pick me up. I had to go from school onto the cotton field or the cornfield or the peanut field or whichever one of them fields he wanted me in, I had to go. And so I wasn't able to get a good education.

ELLIOTT: J.R., a seventh grader, attends a school that is considered failing by state standards. So, under the newly passed Alabama Accountability Act, the family is eligible for a tax credit to transfer to a better public school or an approved private one. Russaw says that's not really an option in their rural county.

RUSSAW: Lord have mercy. I would have to probably borrow money to get gas and I'd probably have to travel over 30 miles or longer, and I don't have the transportation to do that.

ELLIOTT: J.R. is one of several plaintiffs named in a federal lawsuit challenging Alabama's law. It was passed in a controversial last-minute move by the state's Republican-controlled legislature this year. The law provides a $3,500 tax credit for private school tuition or to offset the cost of transferring to a non-failing public school.

Tax breaks are also offered to people in businesses who donate to private scholarship funds to help students who can't otherwise afford to transfer. Richard Cohen is president of the Southern Poverty Law Center, which filed the lawsuit. He says all students can't take advantage of the Alabama Accountability Act.

RICHARD COHEN: The problem with the act is that it creates two classes of students - one group of students who can escape failing schools and another group of students who cannot, by virtue of their poverty or where they happen to live.

ELLIOTT: The lawsuit argues Alabama's law violates the 14th Amendment's guarantee of equal protection, Cohen says, trapping poor and rural students in bad schools.

COHEN: They go to schools or they're in grades where there are no non-failing schools in their counties. They also don't have the means to send their children to private schools. Many of the private schools aren't even participating.

ELLIOTT: At the start of the school year today, 56 private schools are participating in the program, most of them from urban or suburban areas. Alabama Governor Robert Bentley and Republican legislative leaders declined to be interviewed by NPR. But in a statement, Bentley says the goal is to have no failing schools in Alabama and that the law is designed to help students in all public schools, no matter where they are located.

The equal protection argument is new. Most federal challenges to school choice thus far have centered on First Amendment issues, whether using state money to pay for parochial school tuition crosses the line of state-established religion. Josh Cunningham, an education policy analyst at the National Conference of State Legislatures, says the federal lawsuit in Alabama that alleges poor and rural students aren't being treated equally could affect other states.

JOSH CUNNINGHAM: It could have a tremendous impact because most of these programs are based on, you know, low-income students or students in failing schools.

ELLIOTT: Cunningham says Alabama's law is among a flurry of school choice laws pushed by Republican-controlled legislatures since 2010.

CUNNINGHAM: This year, particularly, has been really active. In 2013, we saw 13 states either create or expand existing private school choice policies. And that compares to eight states that did it in 2012 and seven states that did it in 2011. So it's been a pretty productive year for the school choice movement.

ELLIOTT: He says, in all, 21 states and the District of Columbia have enacted private school choice policies. Debbie Elliott, NPR News.

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