The Promise of Choice

Wednesday, April 30, 2003

When my colleagues and I launched the Institute for Justice in 1991, we vowed that we would defend every school choice program until the constitutional cloud was removed from that promising and essential education reform once and for all. Little did we know that it would take 12 years—encompassing 16 lawsuits from coast to coast—until the U.S. Supreme Court would issue a definitive ruling. And still much work remains, but the future for school choice is brighter than ever.

Clearing the Path for School Choice

The Supreme Court decision in Zelman v. Simmons-Harris was worth the wait. At issue was a Cleveland program that allows approximately 4,000 children in one of the nation’s most dismal public school districts to receive scholarships for $2,500 to use as 90 percent of tuition at any participating private school in the city. (Suburban public schools were invited to participate in the program as well, for approximately $6,000 per student. Whereas every private school in Cleveland agreed to participate, no suburban public school did.) Because most of the participating schools were religiously affiliated, the U.S. Court of Appeals for the Sixth Circuit struck down the program as an establishment of religion under the First Amendment. Had it been affirmed, such a ruling could have jeopardized not only school choice programs at the K–12 level but also tuition and scholarship tax deductions and credits as well as post-secondary aid programs such as the G.I. Bill and Pell Grants that operate in exactly the same manner as school vouchers.

The Court’s decision vindicated the most optimistic hopes of school choice supporters. Although a 5–4 decision, the Court majority spoke with a single, decisive voice, providing precisely the clarity necessary for the school choice movement to progress. Chief Justice William Rehnquist, writing for five members of the Court, began by recounting the grievous educational conditions giving rise to the Cleveland scholarship program. It was against that backdrop, the Court observed, that the scholarship program was adopted as “part of a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren” in response to the education crisis.

Applying the law, Rehnquist observed that “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, . . . and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” Rehnquist declared that “where a government aid program is neutral with respect to religion, and provides assistance to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, is not readily subject to challenge under the Establishment Clause.”

The Court was convinced that the program was both neutral and “a program of true private choice,” as part of “a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. . . . It confers educational assistance directly to a broad class of individuals defined without reference to religion.” Moreover, “the program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so” (emphasis in original). By contrast, the program did not provide a financial incentive for parents to choose religious schools; to the contrary, it creates “financial disincentives for religious schools.” Parents receiving scholarships have to copay a part of their tuition ($250), whereas parents choosing traditional, magnet, or community schools pay nothing. Emphasizing that “such features of the program are not necessary to its constitutionality,” they “clearly dispel” any notion that the program is skewed toward religion.

The Court viewed the program in the broader context of school choice and rejected the statistical snapshot as a touchstone of constitutionality. “The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a private scholarship and then choose a religious school.” Beyond that, the Court emphasized, “The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” In closing, the Court underscored the moderation of its decision.

In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

Justices Stevens, Souter, and Breyer penned strident dissents. All of them rejected the Establishment Clause framework that the Court has applied for the past two decades. Justice Stevens raised concerns about “religious strife,” raising the specter of “the Balkans, Northern Ireland, and the Middle East”—concerns echoed by Justice Souter’s claims of “divisiveness” and Justice Breyer’s warnings of “religiously based conflict”—all of which the majority dismissed as “invisible specters,” given that “the program has ignited no ‘divisiveness’ or ‘strife’ other than this litigation.” Nor, as the majority observed, did the dissenters propose any rule of law by which the Court could discern when a program is too religiously divisive to sustain.

The main dissenting opinion, written by Justice Souter and signed by Justices Stevens, Ginsburg, and Breyer, castigated the Court’s jurisprudence over the past 20 years. It also concluded that no true private choice exists in Cleveland but that instead parents are presented with a “Hobson’s choice.” The dissenters on this point maintained that the public schools are so bad—and the religious schools by comparison so good—that Cleveland parents have no realistic choice. It seems odd that the proposed solution would be to eliminate the only positive choice. Justice Souter conceded that in his view there is nothing the state permissibly can do to make religious options available. “The majority notes that I argue both that the Ohio program is unconstitutional because the voucher amount is too low to create real private choice and that any greater expenditure would be unconstitutional as well,” he observes. “The majority is dead right about this.” For the dissenters, the only constitutionally permissible option is for the state to consign students to government schools, no matter how defective.

Not content with Justice Souter’s 34-page opus, Justice Breyer presented a separate dissent, joined by Justices Stevens and Souter (but, curiously, not by Justice Ginsburg). He wrote separately “because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.” For Justice Breyer, it is not enough to vindicate the express intent of the First Amendment—to prohibit laws “respecting an establishment of religion”—but also to avoid “religiously based social conflict.” In this regard, it doesn’t seem to matter that the program, in its sixth year of existence, has not created religious conflict or that its aim is educational. Instead, Breyer views the program against the backdrop of religious strife both in the United States and abroad. Helpfully, he informs us that, in the United States, “Major religions include, among others, Protestants, Catholics, Jews, Muslims, Buddhists, Hindus, and Sikhs. . . . And several of these major religions contain different subsidiary sects with different religious beliefs.” Apparently, the only way we can all get along is if each group is denied the opportunity to direct government benefits as they see fit—or, even worse, to direct them across religious lines, as with the large percentage of non-Catholic families sending their children to inner-city Catholic schools.

Justice Breyer conceded that the “consequence” of existing aid programs that include religious options “has not been great turmoil.” Nor is there evidence that the Cleveland program—or any other school choice program—has caused religious strife. But a voucher program, in Justice Breyer’s view, “risks creating a form of religiously based conflict potentially harmful to the Nation’s social fabric.” Note the hypothetical language: It does not do it, it only risks it; and what it risks is not invariable harm but potential harm. On this double hypothesis, the dissenters would substitute their abstract concerns for the state of Ohio’s urgent effort to deliver educational opportunities in the all-too-real bedlam of Cleveland.

One wonders if in five years, or ten, when the dire prognostications of religious strife pass unfulfilled, whether the dissenters would reconsider their opinions. Likewise, the dissenters implicitly acknowledged that the past 20 years of jurisprudence firmly sanction school choice programs. Instead, they embraced an ends-justifies-the-means rationale that substitutes the subjective fears of individual justices for the clear command of governmental neutrality embodied in the First Amendment’s religion clauses. Fortunately, that view did not prevail, but it is genuinely alarming that it attracted four votes. But they were four votes in a decidedly losing cause.

The Road Ahead

The Supreme Court decision lifted the Establishment Clause cloud, completely and unequivocally. Moreover, school choice opponents still have plenty in what National Education Association general counsel Robert Chanin refers to as their “toolbox” to stop school choice. Most prominent are the “Blaine Amendments” that exist in about 30 state constitutions, which provide that no public money may be given for the “aid” or “benefit” of religious schools. Opponents claim that even if school choice programs are constitutional under the First Amendment, they are impermissible in the large majority of states that have Blaine Amendments or provisions prohibiting “compelled support” of religion.

Those provisions present a serious but not insurmountable obstacle. We successfully defended school choice programs in Wisconsin and Arizona against Blaine Amendment challenges and in Ohio against a compelled support challenge. The reason is that such programs are not for the aid or benefit of schools but for the aid and benefit of schoolchildren.

Some states interpret their religion clauses more expansively, however. For instance, the Vermont Supreme Court found that “tuitioning” of rural students to religious schools violated its state constitution’s compelled support provision, even though it was permissible under the First Amendment. Likewise, the Washington Supreme Court found that its Blaine Amendment forbade student assistance for a blind student attending a religious seminary, even though the U.S. Supreme Court had unanimously upheld it under the First Amendment. And following the U.S. Supreme Court’s decision in Zelman, a state trial court in Florida struck down that state’s opportunity scholarship program under its Blaine Amendment. That decision is on appeal.

Fortunately, Zelman allowed defenders of school choice to shift from defense to offense in the courts, and we are taking the Blaine Amendments head-on. The First Amendment requires “neutrality” toward religion. In other words, while the state cannot discriminate against religion, neither may it discriminate in favor of religion. And states that interpret their Blaine Amendments broadly do exactly that. In Washington state, for instance, students seeking teaching credentials in state universities are allowed to student-teach in private secular schools but not in religious schools. Colorado, Missouri, and Washington state are among those that discriminate against religious students in postsecondary aid programs. And Vermont and Maine exclude religious schools from the range of options in K–12 tuitioning programs.

We are filing test cases challenging such discrimination as a violation of the First Amendment, ultimately seeking a U.S. Supreme Court precedent holding that states may not discriminate against religious educational options. We are aided by the sordid history of the Blaine Amendments. They were enacted in response to nativist concerns about the influx of Catholic immigrants at the end of the nineteenth century. At the time, public schools were bastions of Protestantism and the Protestant Bible was openly taught. The amendments did not seek to separate church and state but to preserve Protestant hegemony over public school funding. The Blaine Amendment has already been roundly criticized as the product of anti-Catholic bigotry by the Arizona Supreme Court, and four members of the U.S. Supreme Court have condemned it as well. We are hopeful that current and planned cases in Washington state, Colorado, Florida, and Vermont will remove the Blaine Amendment from the nefarious anti–school choice “toolbox.”

Beyond legal battles, school choice opponents will continue tenaciously to defeat legislative efforts. The 2002 elections were promising for school choice. Governor Jeb Bush was handily reelected in Florida in an election in which his opponent made opposition to school choice a centerpiece of his campaign. Governor Robert Taft of Ohio, who signed a version of Cleveland’s school choice program into law, was reelected. Pro–school choice governors were elected or reelected in Texas, Colorado, South Carolina, and other states. Among school choice stalwarts newly elected to Congress were Senators Lamar Alexander (R-TN) and James Talent (R-MO) and Representatives Trent Franks (R-AZ) and Tom Feeney (R-FL). In March 2003, Colorado became the first state to enact school choice following the Zelman decision, targeting aid to approximately 18,000 children in failing schools.

The Promise of School Choice

Fueling school choice are two important realities. First, we desperately need new educational options. Second, school choice works.

The crisis in urban public education has never been so starkly apparent, as demonstrated by the early results under the federal No Child Left Behind Act. The law requires that when a particular public school has failed according to the state’s performance criteria, the school district must allow students in that school to transfer to better-performing public schools if space is available.

The 2002 results graphically underscore the utter inadequacy of government school options in meeting the needs of inner-city youngsters. In Baltimore, 30,000 children were identified as attending failing schools—but there are only 194 slots in better-performing government schools. In Chicago, 145,000 children are theoretically eligible to leave failing government schools—but only 1,170 seats are available in better-performing public schools. In Los Angeles, there are 223,000 students enrolled in 120 failing schools—and zero seats available in better-performing public schools. School choice is not even on the horizon in Baltimore, Chicago, or Los Angeles because of the vise-like control the unions exercise over the school districts and state legislatures. Plainly the public schools alone cannot meet the urgent need for high-quality educational opportunities. The failure to consider private options in a rescue mission for those children’s futures is nothing less than criminal.

School choice has proven to be an essential part of the solution. In Milwaukee, test scores and graduation rates have improved for students attending private schools in the choice program. Perhaps even more significant, the competition from private schools has stimulated long-overdue reforms and improvements in the public schools. Public school students are given tutors if they can’t read by third grade, principals have much greater control over hiring and firing and other school policies, and parents enjoy a far broader range of school choices.

Florida is the only state that provides something approaching a money-back guarantee for its public schools. In any public school that the state grades an F for any two years out of four, a remedial plan is adopted and the students are allowed to attend a private school or better-performing public school. In the first year of the program, only two schools qualified; 78 others received an F. Faced with the threat of school choice, all 78 lifted themselves off the failure list. Academic gains were most pronounced among the poorest-performing students. Schools started hiring tutors for failing students, spending more money in the classroom, moving to year-round schools, and adopting other reforms.

The message is clear: The rules of competition are not suspended at the schoolhouse doors. Choice and competition work.

Our nation has a severe and widening racial academic gap, owing largely to the concentration of black and Hispanic students in inadequate inner-city public schools. Most universities attempt to compensate for that problem by bestowing racial preferences, in a cosmetic attempt to make it seem that the gap does not exist. The only way to achieve real racial equality is to provide high-quality educational opportunities at the K–12 level for children who need them most.

Detractors contend that school choice represents an abandonment of public education. They have the means and ends mixed up: Public schools are not supposed to be ends in themselves but a means to achieving the goal of public education. A good education in a private school helps fulfill that goal; a bad education in a public school does not. We should worry less about where education takes place and more about whether education takes place. And in any event, all available evidence suggests that school choice strengthens public schools, making them an option that children will attend, not because they are forced to but because they choose to.

Some express the worry that school choice will subject private schools to excessive regulation. That is a concern about which we should be omni-presently attuned. But so far school choice has had the opposite effect, leading to deregulation of public schools rather than regulation of private schools. Ultimately, school choice will lead to a decentralization and deregulation of education, with the primary role of government shifting away from a command-and-control model of education and more toward funding educational choices. Some of those choices will be traditional public schools, others will be deregulated charter schools, others will be voucher-redeeming private schools, and still others will be completely independent private schools. For all of this, parental choice is the catalyst.

We have a long way to go. The racial gap in academic achievement is still enormous, and efforts to cosmetically alter the results through racial preferences at the post-secondary level are divisive and counterproductive. School choice provides the only proven means to immediately allow children the chance to escape poor schools and attend good ones—not one year from now, not ten years from now but today. And it offers the only sure means to prod poor-performing public schools to improve.

Ours is the generation that has in its hands the tools to fulfill at last the great but unfulfilled promise of Brown v. Board of Education: the promise of an equal educational opportunity for every child. There is no more urgent task facing our nation. Let’s get on with it.