School vouchers and the vexing nature of democracy - Reporter's Notebook - Zelman v. Ohio - Brief Article

Black Issues in Higher Education, August 1, 2002 by Cheryl D. Fields

Democracy can be vexing. Especially when it takes society in directions you aren't sure will benefit all of the people. Sitting in the U.S. Supreme Court gallery earlier this year, during the hearing phase of the school vouchers case, Zelman v. Ohio, I couldn't help but appreciate the role democracy has played in creating opportunities for African Americans. I also couldn't help wondering what former Supreme Court Justice Thurgood Marshall would think about the role democracy is playing in the case of school vouchers.

Champions of school vouchers are quick to equate the Zelman case with the groundbreaking Brown v. the Board of Education of Topeka, Kansas school desegregation case, which Marshall and his legal team presented before the court in 1954. The goal of these two cases is superficially the same--to provide equal educational opportunities for all students irrespective of race, ethnicity and/or socio-economic status. In this observer's mind, however, it is only the statement of that goal that is similar.

At its core, the Zelman case is about choice, an inherent principal of democracy. Ironically, it is choice that helped to create the situation that brought about Zelman. White folks' choice to pay for a private education or to move to the suburbs rather than have their children attend integrated public schools--which, let us not forget, evolved because of the court's decision in Brown--is in part why Cleveland's public schools are failing. Many of our nation's once de jure segregated systems have become de facto segregated systems thanks, in large part, to parental choice. Now, Black parents who can't afford to pay for private schools want to be able to use public money to opt out of public schools, too. It is all very democratic, yet, chilling.

Another disturbing aspect of the Zelman case is that none of the lawyers arguing in favor of vouchers was Black. One could argue that the race of the lawyers was irrelevant, especially since this case was not technically about race. But anyone who observed the media blitz that took place in advance of the hearings knows that African American parents played a major role in Zelman. Fed up with failing, urban public schools, it is these parents who pressed for an alternative. Tuning in to their tear-jerking testimonies, one was hard-pressed to view their pleas as anything but fair. Especially when their wealthier, mostly White, peers have been opting out of urban public schools for decades. Given these racial dynamics, it was odd that none of the courtroom lawyers promoting vouchers was Black.

Nevertheless, the all-White, pro-vouchers legal team did a superb job of making the case for these Black parents, waging clear and compelling arguments and doing a far superior job than their opponents of responding to questions posed by Justice Sandra Day O'Connor, perceived by many to be the swing voter in the case. Voucher opponents, meanwhile, invested most of their energy in trying, unsuccessfully, to convince the court that since the majority of schools participating in the Cleveland voucher program are religious schools, the program violates the constitutional separation between church and state.

In the end, the case was decided 5 to 4 in favor of the voucher program. It should be noted that, consistent with his previous courtroom conduct, Justice Clarence Thomas was the only judge to remain mute throughout the hearing.

Time will tell whether the Zelman decision will cast as influential a shadow as Brown. Voucher opponents are confident that since public opinion has historically been lukewarm toward vouchers, especially among middle-class and suburban Whites, Zelman will not result in a national abandonment of public schools. Even the majority of African Americans (57 percent) oppose vouchers, notes a survey conducted by the National School Boards Association. Still, the Bush administration is gearing up to further empower those who would seek to expand the use of private school vouchers, and they are targeting urban areas.

The majority of African Americans are not ready to give up on public education. They believe that with systemic reform, public schools can serve urban youth as well as they do suburban kids. Admittedly, the performance of today's urban public schools makes the idea of private school tempting. But the amount of money available to participants in most voucher programs, Cleveland's included, is so small it is hard to believe it buys a truly superior education. In the end, this democratic "choice" remedy could leave poor Black kids whose parents aren't involved in their education with access to a virtually worthless education. Again I wonder, what would Thurgood think?