Vouchers and the constitution - State of the Nation - tuition vouchers - Brief Article

USA Today (Society for the Advancement of Education), May, 2002 by Robert J. Bresler

THIS SPRING, the Supreme Court is scheduled to decide one of the most important Establishment Clause cases in many years, and its impact on American education could be as important as Brown v. Board of Education of Topeka (1954). The case, Zelman v. Simmons-Harris, concerns the constitutionality of an Ohio law that provides tuition vouchers for poor children in Cleveland's failing public school system. In 1995, the Cleveland system failed in 27 out of 27 performance measures, persuading a Federal court to order the state to take it over. The Ohio legislature attempted a modest experiment, providing a tuition voucher of up to $2,500 for children whose families fall far below the poverty line. For all other students in the Cleveland public schools, the program pays up to $1,875. The voucher can be used for any private or religious school in the Cleveland school district that does not discriminate on the basis of race, religion, or ethnic background; for public schools in districts adjacent to the Cleveland district; and for tutoring students within the public school system.

Until now, none of the public schools in the Cleveland suburbs have participated in the program. In the 1999-2000 school year, more than 3,700 children were enrolled in it. Of those, 96% were in religious schools. As Cleveland's public schools continue to fail (only one-third of their pupils graduate), the program has gained popularity, with about 4,500 students enrolled in the current school year. A survey conducted in 1999 by Paul Peterson of Harvard University showed that 50% of voucher parents were very satisfied with their offspring's schools, as compared to 30% of the parents in Cleveland's public schools. In addition, the voucher schools are more racially integrated than the public schools.

Opponents of vouchers have repeatedly argued that they would damage the public schools, draining them of resources and better students. A recent study of the Milwaukee voucher program by Caroline Hoxby, a Harvard economist, suggests just the opposite. She wrote that "schools that faced the most potential competition from vouchers had the best productivity response." No doubt, the nation's experience with vouchers is limited, yet the evidence cited in a recent Brookings Institution report shows that they do seem to benefit African-American youngsters. What we do know is that the urban schools serving largely minority children are failing to give them the essential skills and knowledge base for an information age economy. Increasingly, the anti-intellectual teen culture, so prevalent in the inner city, overwhelms the effects of the most valiant educators. In the Cleveland public schools, poor and minority children, many of whom are from single-parent families and neighborhoods rife with drugs and crime, are more likely to be the victims of crime than to perform adequately in basic subjects.

Experienced teachers often avoid these schools, and the level of burnout among those who don't is high. The persistent and well-funded opposition to vouchers from the nation's teachers unions has allowed just a few programs to be tried, such as in Milwaukee and Cleveland. Should the Court declare that the Ohio program is unconstitutional, the voucher experiment will come to an end, and inner-city families will pay the price.

Thus, Zelman v. Simmons-Harris will be a defining moment in the history of American public education. It is also a fit battleground for America's continual culture wars. Joining the briefs attacking the Ohio programs were the teachers unions and their liberal allies--the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State; and joining the state of Ohio in defending the program were the Solicitor General of the United States and the conservative Institute of Justice.

The biggest hurdle facing the defenders of the Ohio program is a 1973 Supreme Court decision, Committee for Public Education v. Nyquist. In that case, the Court ruled that a tuition grant program of the state of New York, providing partial reimbursement to low-income parents whose children attended private schools, was unconstitutional. The Nyquist Court ruled that grants offered as an incentive to parents to send their offspring to religious schools violated the Establishment Clause. In the Sixth Circuit Court of Appeals, from which Zelman came to the Supreme Court, a divided panel held that Nyquist governed the case and struck down the Ohio program. The dissenting judge on the Sixth Circuit panel argued that several Supreme Court decisions since Nyquist have substantially altered that precedent. In Mueller v. Allen (1983), the Supreme Court upheld a Minnesota statute authorizing a tax deduction for certain educational expenses incurred by parents of children attending either public or private schools; and in Witters v. Washington Department of Services for the Blind (1983), it upheld a program providing rehabilitation assistance for a blind individual to attend a Christian college in order to study to be a pastor. The test for these programs was whether the funds were dispersed directly to eligible applicants, who then made the choice. In those cases and others, the Court ruled that, as long as the aid flowed through individuals and was the result of their independent and private choice, it did not violate the Establishment Clause.