TCS Daily

School's In For Summer

By Pejman Yousefzadeh - July 15, 2002 12:00 AM

Throughout the history of the battle over school vouchers, two primary obstacles stood in the way of their implementation across the country. The first was and is the obstinacy of the teachers' unions, which put the job security of their members over the needs of American schoolchildren. The second was the argument made by voucher opponents claiming that vouchers were unconstitutional because they allegedly violated the Establishment Clause of the First Amendment. While the vehement opposition of teachers' unions will still have to be overcome, the Supreme Court removed the second obstacle by ruling in Zelman v. Simmons-Harris that school vouchers are constitutional. The Court's decision represents a tremendous victory for the principles of constitutional law, as well as for both voucher proponents, and for millions of disadvantaged schoolchildren and their parents.

Zelman centered on a voucher program that was implemented by the city of Cleveland-which is notorious for the poor quality of its public schools. The city offered parents money that could be used to send their children to private schools. A huge number of parents took up the city's offer, and used the voucher program to pull their children from the depressingly poor Cleveland public schools. Because 82% of the private schools eligible for inclusion in the voucher program were religious in nature, and because 96% of the parents who took voucher money sent their children to religious schools, suit was brought by voucher opponents, claiming that the Cleveland voucher system violated the Establishment Clause of the First Amendment to the Constitution.

In finding that the voucher program was indeed constitutional, the Court applied the three-part test in Lemon v. Kurtzman, used to determine whether or not an Establishment Clause violation has taken place. The Lemon test asks (1) whether a suspect program has a secular purpose; (2) whether the effect is to advance or inhibit religion; and (3) whether there is an excessive government entanglement with religion as a result of the suspect program. Additionally, the Court considered its precedent in Mueller v. Allen, where it determined that a government aid program is not subject to challenge under the Establishment Clause if it is neutral with respect to religion, and if it provides assistance to a broad category of citizens.

In the case of school vouchers, there was a secular purpose to the program-to improve and augment the quality of education given to schoolchildren in Cleveland. Pursuant to the ruling in Mueller, the Court correctly found that there was no advancement or inhibition of religion because any government aid that reached religious institutions did so only as a result of the choice of individual recipients-the parents of the children who accepted voucher money to put their children in better schools. As such, any advancement of a religious message was attributable to the individual aid recipients, not the government-thus leading to no excessive government entanglement with religion.

Much of the tone of the dissent against the Court's opinion bordered on the desperate. The dissent argued that the Establishment Clause was violated as a result of the fact that 82% of the private schools in the Cleveland area-which received voucher aid-were religious in nature. But as the majority pointed out, the dissent's complaint would have absurd constitutional consequences. To give constitutional significance to the 82% figure would lead to the strange result of having the neutral application test in Mueller apply in some parts of the state of Ohio where the percentage of religious schools is lower, but not apply in Cleveland, where voucher proponents and local government officials have determined that vouchers are needed the most.

In the dissent written by Justice Souter, he claimed that because the vast majority of voucher money ultimately went to religious schools, the voucher program itself must somehow encourage the creation or participation of religious schools. This claim is nonsensical. The creation of religious schools stems from the fact that religious schools often do a better job than other schools in teaching children, and preparing them for the future. Religious schools excel at emphasizing tried and true educational fundamentals, and at instructing their charges on proper behavior. Additionally, religious schools are better insulated from the pernicious effects of the kind of political correctness that too often disrupts the educational mission of public schools (and for that matter, many secular private schools).

Justice Souter also maintained that because 96% of the recipients of voucher aid sent their children to religious schools, there was no true parental choice in the matter. However, as an attack on the Establishment Clause, Justice Souter's argument was appropriately found to fail. The Supreme Court had previously ruled in Agostini v. Felton that it was not willing "to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid." Thus, Justice Souter's complaint was unsupported by legal precedent, and was correctly found to be wanting.

Comparing school voucher programs to other examples of government aid programs only serves to further establish the unremarkable constitutional nature of vouchers. As Justice O'Connor pointed out in her concurrence, "Federal dollars also reach religiously affiliated organizations through public health programs such as Medicare... and Medicaid... through educational programs such as the Pell Grant program... and through Child Care programs such as the Child Care and Development Block Grant program." So long as those programs respect the requirements of the Lemon test, and the neutrality principle endorsed in Mueller, they are properly found to be in accordance with the Establishment Clause. Vouchers should be afforded the same constitutional courtesy, and under the Court's decision, they will be.

Beyond the constitutional ramifications of the Zelman ruling, the public policy consequences of the decision will also be significant, and likely quite positive. As Justice Clarence Thomas pointed out in his concurrence, "failing urban public schools disproportionately affect minority children most in need of educational opportunity. . . . Just as blacks supported public education during Reconstruction, many blacks and other minorities support school choice programs because they provide the greatest educational opportunities for their children in struggling communities." Indeed, it is curious that anti-voucher groups like the teachers' unions would oppose a program specifically designed to uplift the educational opportunities of the most unfortunate in our society. Such opposition merely serves to demonstrate just how much education policy centers today on the needs of special interest groups, rather than on the needs of children-the consumers of America's current poor education services.

Of course, as tremendous as the legal victory over the constitutionality of vouchers is, it is now time to focus on the next battle in the ongoing effort to reshape our education policies. As Peter Ferrara, a former U.S. Associate Deputy Attorney General points out, anti-voucher groups are determined to diminish the impact of the Supreme Court's ruling in the court of public opinion as much as possible. Anti-voucher groups have argued, for example, that the vote to affirm the constitutionality of the Cleveland voucher program was a very close 5-4, and have held out hope that in the future, a different alignment on the Court could overturn the Zelman decision. School choice and voucher advocates should fight this attempt by pointing out that however close the vote, the battle over the constitutionality of school vouchers has been decided in favor of the school choice advocates. Whatever further objections are raised against the implementation of voucher programs across the country, the constitutional status of those programs is now clear, and set down as Supreme Court precedent. As John F. Kennedy said in claiming victory in the exceedingly hard fought, and excruciatingly close 1960 election, "The margin is thin, but the responsibility is clear."

That responsibility includes taking the fight for school choice programs to the state legislatures, as Robert Alt advocates. School choice advocates should endeavor to build on the tremendous momentum afforded by the Zelman decision, and implement school choice programs in the various state legislatures. Additionally, President Bush, who has made education reform a hallmark of his domestic policy, should now follow-up the education reform bill he recently signed into law, and propose true and genuine education choice for American schoolchildren.

The affirmation that school choice programs like the one implemented in Cleveland are constitutional, is a welcome statement by the Supreme Court, fully consistent with common sense, and with the Court's own precedent. The Zelman decision opens the door to serious and profound improvements in American education policy. National and local proponents of school choice should take advantage of this opening, and better the state of the deservedly derided American education system by furthering the cause of school choice. To do so would be to effect a tremendous and positive change in the American education system, and to save millions of schoolchildren from the poverty, hopelessness, and anti-social behavior that too often is the byproduct of a poor education. We owe them no less.



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