Will the Supreme Court Widen the School-Choice Debate?

Second Quarter 2002

0n February 20, the U.S. Supreme Court heard oral arguments on the Cleveland school-voucher case. The circumstances of the case are narrow, but if the court upholds the Ohio law, the consequence will be that the inclusion of religious school choice in government funding decisions will no longer be considered a violation of the U.S. Constitution's First Amendment.

Six years ago, the Ohio legislature decided to act in face of serious failures in the Cleveland public school system. Low-income families (mostly black and Hispanic) were locked into school districts that provided poor to failing education. The state decided to offer a voucher of $2,250 to any K-8 student in such schools whose family lived below 200% of the poverty line. The voucher can be used at religious and other independent schools and the program encourages choice of charter schools as well as out-of-district (suburban) public schools if the latter will welcome such students. The state bent over backwards to avoid removing funding from the city schools. The students who choose the voucher option are still counted as part of the public school's budget responsibility. Thus, there is no reduction of funding for the city's schools even though today they are educating about 4300 fewer students.

The fact is, however, that none of the suburban public schools has opened its doors to these students. And some formerly private schools have opted to become charter schools, which means more state income per student for those schools than is provided by the voucher amount for independent schools. As a consequence of all these decisions, almost all of the students who have chosen to use vouchers are attending independent religious or church-run schools. Clint Bolick, an attorney for some of the parents who are using the vouchers, emphasizes the deliberate choice made by parents in this instance. No one is being forced to attend a religious school. No parent who has wanted a non-religious school option has failed to find it.

How could anyone complain about this program except to say that the voucher amount is too small and that government is still giving too much backing to failing city schools?

Opponents of the program argue that it is unconstitutional because it allows public funds to go to religious schools, and this supposedly means that the state is endorsing religion. This conviction is so strong, in fact, that a lower court struck down the choice program on precisely these grounds. Proponents argue to the contrary that the state is merely trying to find options so that poor children can escape failing public schools. If some of the vouchers end up at religious schools, that is due to parental choice and not to government mandate. If none of the parents choose religious schools or if all of them choose religious schools is beside the point. The government does not direct its funds toward any school in particular.

Standing before the Supreme Court on February 20, Judith French, Ohio's assistant attorney general, and Theodore B. Olson, U.S. solicitor general, argued on behalf of the Cleveland program, emphasizing that the voucher component is but one part of the larger choice program. Arguing against the voucher system was attorney Robert H. Chanin, who belittled the idea that parents were really making free choices; they are being pushed toward religious schools, he said.

No one can be certain about how the court will decide the case, but a ruling is expected before the court adjourns in July. However small the voucher amount and however narrow the circumstances of the Ohio case, the impact of a positive establishmentclause decision by the court could be huge. Once the First-Amendment issue is resolved, then the real policy debate can begin.

The issues at stake are at least three: (1) parents' rights, (2) religious nondiscrimination, and (3) educational equity.

1. More than 75 years ago the Supreme Court ruled that parents ultimately bear responsibility for the education of their children and cannot be denied the choice about where to educate them. Many states now permit home schooling. Religious and other independent-school options have always been permitted. In fact, if you step back and ask, "What does my state consider to be the publicly legitimate ways in which I can fulfill my legal obligation to educate my children?" you will probably discover that your state gives you four publicly approved options. You can send your children to the local public school; you can send them to a parochial school; you can send them to an independent private school; or you can home school them. All of those options meet with public, legal approval today. All are thus part of the truly public system of education. But why then does almost all of the state's funding for education go only to one of those schooling options?

The Cleveland situation shows how unjust it is to parents for the state to put all of its education money in one basket. Poor parents don't have enough money to pay for other schools, nor are they wealthy enough to move to an upscale school district. So their legal right to make schooling choices for their children means nothing in practice: they have no choice but to send their children to a failing, government-funded school. True justice for parents will come only when governments decide, as Ohio has begun to do, that there ought to be many educational options for parents to choose from, and low-income families should not be denied choice.

2. In the second place, the Constitution's First Amendment needs to be interpreted for what it really says, not in the way it has been misunderstood for the past 60 years. It is a myth that the First Amendment prohibits direct public funding or endorsement of religion. What the First Amendment prohibits is government's establishment of religion. An illegitimate establishment would occur only if the government relieved only Baptists or only Jews of property taxes but required such taxes from all other religious groups. Or it would be unconstitutional for government to give college loans only to students who attend religious colleges.

The same can be said for education. But there would be nothing wrong, nothing unconstitutional, if government allowed parents to choose schools, including religious schools, and then, afterwards, sent the proportionate amount of funding directly to the schools. The aim of the government's program would be to fund schooling for all children and to back up parents who have the primary responsibility to choose education for their children. Government does not establish a religion simply by encouraging its citizens to practice their religions, without penalty or special benefit.

3. Finally, the urgency in this country today is for government to make real educational opportunity available to all children. Our public vision for education ought to be a vision of government support for all children instead of financial support only for government-run schools.

If the cost of schooling in Cleveland or any other city is, let's say $7,000 per student, then give vouchers worth $7,000 to every student. For those with learning disabilities or handicaps, make the voucher $10,000 or more, depending on the seriousness of the need. Then let parents choose the schools they want. Schools that don't work and can't educate will not attract students and will go out of business. Those that succeed will attract students and will expand or multiply. It will make no difference on a constitutional basis whether 20 percent or 50 percent of the students go to Catholic schools or Jewish schools, to secular schools or multicultural schools. Government will be supporting quality education for all children, and parents will be free to exercise their responsibility to educate their children.