IN
A LONG-ANTICIPATED RULING, ON JUNE UPHELD THE
27
THE
SUPREME
COURT
CLEVELAND
SCHOOL CHOICE PROGRAM
AGAINST A FEDERAL CONSTITUTIONAL CHALLENGE AND MADE IT EXTREMELY UNLIKELY THAT ANY SUCH CHALLENGE COULD PREVAIL AGAINST SIMILAR CHOICE PROGRAMS IN THE FUTURE. IN ITS LANDMARK OPINION, THE SUPREME COURT REMOVED ONE OF THE UNFORTUNATE OBSTACLES THAT OPPONENTS OF CHOICE
FEATURE
HAVE ATTEMPTED TO USE TO STOP THE GROWING SPREAD AND SUCCESS OF CHOICE PROGRAMS NATIONWIDE. THE HIGH COURT RULED DEFINITIVELY THAT ALLOWING PARENTS TO USE STATE SCHOLARSHIPS FOR PRIVATE SCHOOLS, EVEN IF THEY INCLUDE RELIGIOUS SCHOOLS, DOES NOT VIOLATE THE
CONSTITUTION.
THE INSIDER
JULY 2002, NO. 297
The deadline for all submissions to The Insider is the 7th of the month. Please contact The Editor, The Insider, The Heritage Foundation, 214 Massachusetts Avenue, NE, Washington, D.C. 20002-4999, 202/546-4400, fax 202/544-0961, email Insider@heritage.org. The Insider is published monthly by The Heritage Foundation’s Coalition Relations Department. Begun in January 1978, The Insider abstracts recent publications, profiles the latest legal action, and reports newsworthy events in the conservative movement. The Coalition Relations Department serves as Heritage’s liaison to a network of some 400 policy groups and over 2,000 leading scholars and activists worldwide.
COALITION RELATIONS STAFF
Bridgett Wagner, Director, Coalition Relations • John Hilboldt, Deputy Director, Coalition Relations • Andrew Walker, Editor, The Insider • Lynn Gibson, Job Bank Coordinator • Ann Bula, Internship Coordinator Kelli Fulton, Project Coordinator • Matthew Holt, Jane Kembabazi, Coalition Relations Interns • Becky Norton Dunlop, Vice President, External Relations
Note: Nothing written here is to be construed as necessarily reflecting the view of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.
. . . . . . . . . . . . . . . . . . .
F
E
A
T
U
R
E
. . . . . . . . . . . . . . . . . . .
The need for parental choice in schooling has never been greater. In many of America's large and medium-sized cities, the public school systems feature crumbling, violent, and academically abysmal schools. Poor families in these areas usually have no choice regarding their children’s education because the kids are trapped in whatever failing and sometimes violent school to which they are assigned. The only hope for many such families is passage of an educational choice program that gives parents other schooling options in the short run and creates proper incentives for the public school system to improve in the future. Unfortunately, the dream of giving poor parents a meaningful choice for their children is opposed by the prominent teachers unions and their ideological brethren, who fight
a stipend for many parents to employ tutors if they kept their children in their current schools. Finally, it provided “choice scholarships” for some parents to help send their children to participating private schools or suburban public schools. When no suburban public school would accept the inner-city children, the parents who exercised this last option selected from a number of participating private schools, including nonsectarian schools, nondenominational religious schools, and religious schools of various denominations. (For more detail about the Cleveland program, see http://www.schoolchoiceinfo.org/.) The National Education Association (NEA) and others opposed to giving poor parents any private school choice filed suit to kill this vital aspect of the legislative program. The NEA’s
. . . . . . . . . . . . . . . . . .
School Choice Expert Contact Information
Joseph L. Bast, President, The Heartland Institute, 19 South LaSalle, Suite 903, Chicago, IL 60603, 312/377-4000, http://www.heartland.org David Brennan, Alexis de Tocqueville Institution, 1446 E Street, SE, Washington, DC 20003, 202/548-0006, fax 202/318-1265, http://www.adti.net Matt Brouillette, President, The Commonwealth Foundation, 225 State Street, Suite 302, Harrisburg, PA 17101, 717/671-1901 http://www.commonwealthfoundati on.org Robert C. Enlow, Vice President for Programs and Public Relations, Milton & Rose D. Friedman Foundation, One American Square, Suite 1750, P. O. Box 82078, Indianapolis, IN 46282, 317/6810745, fax 317/681-0945, http://www.friedmanfoundation.org Howard Fuller, Director, Institute for the Transformation of Learning, Marquette University School of Education, Milwaukee, WI 53201, 414/288-5775 Robert Holland, Lexington Institute, 1600 Wilson Boulevard, Suite 900, Arlington, VA 22209, 7 0 3 / 5 2 2 - 5 8 2 8 http://www.lexingtoninstitute.org Lance Izumi, Director, Center for School Reform, Pacific Research Institute, 1414 K Street, Suite 200, Sacramento, CA 95814, 9 1 6 / 4 4 8 - 1 9 2 6 , http://www.pacificresearch.org Expert Contact continued on page 4. Information
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
WHAT’S NEXT FOR SCHOOL CHOICE?
by Todd Gazanio and Krista Kafer
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
tenaciously to protect the public monopoly. The teachers unions and their allies use a variety of false and emotional arguments against granting parents a choice, and they support endless and baseless legal challenges to any choice proposal that is advanced. In Ohio, the legislature overcame such obstacles and enacted an educational reform statute that gives poor parents a variety of choices whenever a school system has become so dysfunctional that the courts take it over for its failure to meet the basic educational needs of its students. Thus, the Ohio legislative choice program became available for parents in Cleveland, whose school system has been in judicial receivership for about seven years. The Cleveland choice program authorized by the Ohio legislature provided increased spending for 23 new magnet schools and for new “community schools,” which are similar to charter schools elsewhere. It also provided
principal argument was that if any parent was permitted to use the tuition assistance scholarship at a religious school that would amount to an “establishment of religion” in violation of the First Amendment. Although federal courts have increasingly rejected this desperate legal gambit, the U.S. Sixth Circuit Court of Appeals ruled in favor of the NEA. The Supreme Court granted review, enjoined the Sixth Circuit’s ruling, and overruled that decision. The Supreme Court’s landmark ruling lifts the cloud of litigation over the Cleveland school choice program and should also remove the threat of federal litigation from almost every other choice program that permits the parents to choose the school for their children. The Court ruled that when parents make the final choice, there is no reason for anyone to think the state endorsed that choice and, thus, no possible state
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . .
T
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H
E
I
N
S
I
D
E
R
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
School Choice Expert Contact Information cont.
Krista Kafer, Senior Policy Analyst for Education, The Heritage Foundation, 214 Massachusetts Avenue, NE, Washington, DC 20002, 202/546-4400, fax 202/5439647, http://www.heritage.org Dick Komer, Senior Litigation Attorney, Institute for Justice, 1717 Pennsylvania Avenue, NW, Suite 200, Washington, DC 20006, 202/955-1300, fax 202 /955-1329, http://www.ij.org Andrew T. LeFevre, American Legislative Exchange Council, 910 17th Street, NW, 5th Floor Washington, DC 20006, 202/4663800, http://www.alec.org Susan Mitchell, President, The American Education Reform Foundation, 2025 North Summit, Suite 103, Milwaukee, WI 53202, 414/319-9160 Lawrence C. Patrick, President, Black Alliance for Educational Options, 501 C Street, NE, Suite 3, Washington, DC 20002, 202/5449870, http://www.baeo.org, http://www.schoolchoiceinfo.org For a more complete listing of school choice experts see www.policyexperts.org.
“establishment of religion.” The Court ruled that it did not matter that government indirectly facilitated a particular choice or indirectly aided a religious institution. Nor did it matter what percentage of parents might ultimately choose a religious school (even if it is 96 percent, as in the current Cleveland program), as long as the program involved “true parental choice” and the choice plan was enacted for a valid secular purpose, such as improving educational opportunities for poor children. The victory for choice supporters will have a striking legal, practical, and psychological impact. The likely legal effect of the ruling will be a shift in the type of challenges that are brought, from desperate arguments to despicable ones. Opponents of choice will no longer be able to bring a federal constitutional challenge to similar choice programs in good faith, although these opponents are expected to shift their legal tactics to rely on many state statutes and constitutional provisions that themselves are an outgrowth of historical religious bigotry. These new challenges should also fail, in part because the state provisions (e.g., Blaine Amendments) are invalid under the First Amendment. The more dramatic and immediate effect of the victory will be its practical and psychological boost for the choice movement. Already, there are 10 states that have publicly sponsored private school choice programs, from vouchers to tax credits. With a green light from the high court, the possibilities for new programs are endless. While the hard work of creating new programs remains, the door is open to legislators to extend school choice to families seeking a better education for their children. For the over 50 percent of all poor children scoring below the grade level on our national tests, it is imperative that legislators act on their behalf. For the families of the 4,000 children in the Cleveland program, the impact of the Court’s decision is clear: They can return to their schools this fall. • Todd Gaziano is the Senior Fellow in Legal Studies at The Heritage Foundation and Krista Kafer is the Senior Policy Analyst for Education at The Heritage Foundation.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .