Parents in some rural Alabama counties are asking a federal court to block a new state law that gives tax breaks to families who transfer out of failing schools. They argue that their children aren't getting a fair shot at a quality education.

The law, passed in a controversial last-minute move by the state's Republican-controlled Legislature this year, provides a $3,500 tax credit for private school tuition or to offset the cost of transferring to a nonfailing public school. Tax breaks are also offered to people and businesses that donate to private scholarship funds to help students who can't otherwise afford to transfer.

Mariah Russaw, one of the plaintiffs, says she wants her grandson J.R., a seventh-grader, to finish high school. J.R. attends a school that is considered failing by state standards. Under the new law, the family is eligible for a tax credit to transfer to a better public school or approved private one.

Russaw says that's not really an option in their rural county.

"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," Russaw says.

Richard Cohen, president of the Southern Poverty Law Center, which filed the lawsuit, says all students can't take advantage of the Alabama Accountability Act.

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

"They go to schools or they're in grades where there are no nonfailing 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," he says.

As of the start of the school year on Monday, 56 private schools are participating in the program, most of them from urban or suburban areas.

Alabama Gov. 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.

"It could have a tremendous impact because most of these programs are based on low-income students and students in failing schools," Cunningham says.

Cunningham says Alabama's law is among a flurry of school choice laws pushed by Republican-controlled legislatures since 2010. "This year, particularly, has been really active. In 2013, we saw 13 states either create or expand existing private-school-choice policies. 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," he says.

Cunningham says in all, 21 states and the District of Columbia have enacted private-school-choice policies.

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