Commentary Magazine

Victory for Vouchers?

In the most anticipated decision of its recent term, the Supreme Court ruled, in the case of Zelman v. Simmons-Harris, that the school-voucher program in Cleveland, Ohio did not violate the Constitution’s ban on the “establishment” of religion. Opponents of vouchers—i.e., the use of public funds to help families pay tuition at private schools, including religious schools—were predictably disappointed, but pledged to fight on. As Senator Edward M. Kennedy declared, “Vouchers may be constitutional,” but “that doesn’t make them good policy.”

The policy’s sympathizers, needless to say, saw the ruling in a different light. President Bush used the occasion of the Supreme Court’s decision to issue a full-throated endorsement of vouchers. Zelman, he told a gathering in Cleveland, did more than remove a constitutional cloud; it was a “historic” turning point in how Americans think about education. In 1954, in Brown v. Board of Education, the Court had ruled that the country could not have two sets of schools, “one for African-Americans and one for whites.” Now, he continued, in ruling as it did in the Cleveland case, the Court was affirming a similar principle, proclaiming that “our nation will not accept one education system for those who can afford to send their children to a school of their choice and one for those who can’t.” Zelman, according to the President, is Brown all over again.

But is it?



Publicly funded school vouchers got their start in Milwaukee, Wisconsin in 1990. Established at the urging of local black leaders and Wisconsin Governor Tommy Thompson (now the Secretary of Health and Human Services), the program was originally restricted to secular private schools and included fewer than a thousand needy students. To accommodate growing demand, religious schools were later allowed to participate, an arrangement declared constitutional in 1998 by the Wisconsin Supreme Court. The Milwaukee program now provides a voucher worth up to $5,785 to over 10,000 students, amounting to more than 15 percent of the school system’s eligible population.

In 1999, at the behest of Governor Jeb Bush, Florida also established a publicly funded voucher program, aimed at students attending public schools that failed to meet state standards. Though just two schools and fewer than a hundred students have participated in the program thus far, ten other schools, with thousands of students, will be eligible to participate this fall. (The Florida program is also noteworthy because it served as a model for the voucher-like federal scholarship program advocated by George W. Bush during the 2000 presidential campaign—a program subsequently abandoned by the administration in its push for an education bill.)

Though the Milwaukee and Florida programs had until recently received the most public attention, it was the program in Cleveland—the country’s only other publicly funded voucher program of any size1—that won the opponents of vouchers their day before the Supreme Court. The Cleveland program is relatively small, providing a maximum of $2,250 a year to each of roughly 4,000 students. Parents use the vouchers overwhelmingly for religious schools, which in recent years have enrolled over 90 percent of the program’s participants. This, according to lawyers for the teachers’ unions, the most powerful foe of vouchers, constituted an obvious violation of the separation between church and state. And they prevailed twice in federal court, winning decisions at the trial and appellate level against Susan Zelman, Ohio’s superintendent of public instruction and the official responsible for administering the Cleveland program.

But the five more conservative members of the Supreme Court were not persuaded. In his opinion for the majority in Zelman, Chief Justice William Rehnquist pointed to three well-known precedents—Mueller (1983), Witters (1986), and Zobrest (1993)—in which the Court had allowed government funds to flow to religious schools. What these cases had in common, he wrote, and what they shared with the Cleveland voucher program, was that public money reached the schools “only as a result of the genuine and independent choices of private individuals.” Under Cleveland’s program, families were in no way coerced to send their children to religious schools; they had a range of state-funded options, including secular private schools, charter schools, magnet schools, and traditional public schools. Considered in this wider context, the voucher program was, Rehnquist concluded, “entirely neutral with respect to religion.”

The dissenters in Zelman, led by Justice David Souter, challenged the majority’s reading of the relevant precedents—especially of Nyquist (1973), a ruling that struck down a New York State program giving aid to religious schools—and suggested that the choice in Cleveland between religion and non-religion was a mere legal fiction. They saved their most pointed objections, however, for what they saw as the likely social consequences of the ruling. The Court, Souter wrote, was promoting “divisiveness” by asking secular taxpayers to support, for example, the teaching of “Muslim views on the differential treatment of the sexes,” or by asking Muslim-Americans to pay “for the endorsement of the religious Zionism taught in many religious Jewish schools.” Justice Stephen Breyer suggested that the decision would spark “a struggle of sect against sect,” and Justice John Paul Stevens wondered if the majority had considered the lessons of other nations’ experience around the world, including “the impact of religious strife . . . on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another.”



If judicial rhetoric is all that counts, the dissenters in Zelman had the better of it. In the majority opinion, by contrast, there is very little that rises to the level of Brown‘s often-cited language about the demands of American equality. Even observers pleased by the ruling were disappointed that the majority’s opinion did not go much beyond showing how the facts of the case fit past precedents; no ringing declarations are to be found in Chief Justice Rehnquist’s cautious prose.

Only in the concurrences written by two of the Justices does one get a sense of the wider issues at stake. Responding to the worries of the dissenters, Justice Sandra Day O’Connor pointed out that taxpayer dollars have long flowed to various religious institutions—through Pell Grants to denominational colleges and universities; through child-care subsidies that can be used at churches, synagogues, and other religious institutions; through direct aid to parochial schools for transportation, textbooks, and other materials; and, indirectly, through the tax code, which gives special breaks to the faithful. If government aid to religious institutions were such a problem, she suggested, wouldn’t American society be torn already by sectarian strife?

What Justice O’Connor failed to answer was the dissenters’ obvious disquiet—one shared these days by many Americans—at the prospect of public money going to support the teaching of extremist religious creeds. This is a reasonable concern—though it is hardly clear, as the Justices themselves might have argued, that the best tool for conquering intolerance born of religious zeal is for the government to impose secular enlightenment. The U.S. has achieved religious peace not by depending upon school-based indoctrination of any stripe but by ensuring that the members of all creeds have access to the democratic process and a robust private sphere in which to meet their particular needs.

As an educational matter, several well-designed studies have shown that students who attend private schools in the U.S. are not only just as tolerant of others as their public-school peers but are also more engaged in political and community life. Catholic schools have a particularly outstanding record, probably because for more than a century American Catholics have felt compelled to teach democratic values as proof of their patriotism. There are obviously extremist outliers among, for instance, some of the American madrassas discovered by journalists since September 11, but there is no reason to doubt that most of the country’s religious schools are attempting to prove that they, too, can create good citizens.

As for Brown itself, only Justice Clarence Thomas, in his own stirring concurrence, pointed to it as an explicit precedent, quoting Frederick Douglass to argue that today’s inner-city public-school systems “deny emancipation to urban minority students.” As he observed,

The failure to provide education to poor urban children perpetuates a vicious cycle of poverty, dependence, criminality, and alienation that continues for the remainder of their lives. If society cannot end racial discrimination, at least it can arm minorities with the education to defend themselves from some of discrimination’s effects.

For Justice Thomas—as for President Bush, whose own remarks were undoubtedly influenced by these passages—vouchers are a civil-rights issue; they promise not to intensify religious strife, as the Court’s dissenters would have it, but to help heal the country’s most enduring social divide.



Whether Zelman can in fact meet these high expectations remains very much to be seen. Brown, in principle, was self-enacting. Neither state legislatures nor local school boards could defy the ruling without running afoul of the law. George Wallace, Bull Connor, and many other Southern politicians were willing to do just that, but in the end, federal authorities imposed the Supreme Court’s decision on the vested interests that opposed it.

Zelman is different. Though it keeps existing voucher programs intact, it does not compel the formation of new ones. Here the barricades to change remain extraordinarily high.

Public opinion does not pose the most serious obstacle; indeed, on this issue it is highly uncertain. Pollsters can get either pro-voucher or anti-voucher majorities simply by tinkering with the wording of their questions and the order in which they are asked. Nor, despite greater exposure for the issue, have the public’s views evolved much in recent years; questions asked in 1996 generated basically the same results in 2001.

Vouchers suffer from graver problems among members of the political class. Whether in Congress or at the state level, substantial bipartisan support is usually necessary to get a piece of legislation through the various committees, past a vote in two chambers, and signed into law. For vouchers, such support has never materialized. Whatever the private opinions of Democrats, for most of them, it is political suicide to support vouchers publicly. Teachers’ unions have long placed vouchers at the top of their legislative kill list, and they are a key Democratic constituency, providing the party with both substantial financing and election-day shock troops.

Nor can voucher proponents rely on wholehearted support from the GOP. Most Republicans, especially social conservatives and libertarians who have read their Milton Friedman, support vouchers in principle. Still, an idea whose primary appeal is to black Americans, the most faithful of all Democratic voting blocs, is a hard sell among the Republican rank-and-file. Vouchers simply do not have much resonance with well-heeled suburbanites who already have a range of educational choices. When vouchers came up as state ballot questions in both California and Michigan two years ago, most Republican politicians found a way to dodge the issue—and the proposals lost badly.

Even if this political situation were to change, most states have constitutional restrictions of their own that may be invoked to scuttle attempts to provide vouchers for use at religious schools. Many of these provisions are so-called “Blaine” amendments, dating to the 19th century, when James Blaine, a Senator from Maine and a Republican presidential candidate, sought to win the anti-immigrant vote by campaigning to deny public funds to Catholic schools. (Blaine is perhaps most famous for describing the Democrats as the party of “Rum, Romanism, and Rebellion.”) In its classic version, the Blaine amendment read as follows:

No money raised by taxation for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

In a number of cases, state courts have interpreted Blaine amendments to mean nothing more than what is required, according to the Supreme Court, by the establishment clause of the First Amendment. On this view, vouchers are safe—but not every state judge necessarily shares this view. Such language may prove to be a hurdle for the voucher program in Florida, where a trial court has now ruled that the law violates the state constitution. Depending on what finally happens at the state level, the Supreme Court may in time be asked to decide whether, on account of their nativist and anti-Catholic origins, the Blaine amendments themselves are unconstitutional.



However much these practical differences may separate Zelman from Brown, one powerful similarity remains: like the Court’s famed ruling against segregation in the schools, the decision to allow vouchers means much more for black students and their families than for other Americans.

For decades, and despite a host of compensatory reforms, the sizable gap in educational performance between blacks and whites has remained roughly the same. According to the National Assessment of Educational Progress, black eighth graders continue to score about four grade levels below their white peers on standardized tests. Nor is this gap likely to close as long as we have, in President Bush’s words, “one education system for those who can afford to send their children to a school of their choice and one for those who can’t.”

When parents choose a neighborhood or town in which to live, they also select, often quite self-consciously, a school for their children. That is why various Internet services now provide buyers—and real-estate agents—with detailed test-score data and other information about school districts and even individual schools. But there is a catch: the mobility that makes these choices possible costs money. It is no accident that children lucky enough to be born into privilege also attend the nation’s best schools.

African-Americans are often the losers in this arrangement. Holding less financial equity, and still facing discrimination in the housing market, they choose from a limited set of housing options. As a result, their children are more likely to attend the worst public schools. Richer, whiter districts rarely extend anything more than a few token slots to low-income minority students outside their communities.

It is thus unsurprising that blacks have benefited most when school choice has been expanded. In multi-year evaluations of private voucher programs in New York City, Washington, D.C., and Dayton, Ohio, my colleagues and I found that African-American students, when given the chance to attend private schools, scored significantly higher on standardized tests than comparable students who remained in the public schools. In New York, where the estimates are most precise, those who switched from public to private schools scored, after three years, roughly 9 percentage points higher on math and reading tests than their public-school peers, a difference of about two grade levels. If reproduced nationwide, this result would cut almost in half the black-white test-score gap. (Interestingly, there is no evidence that vouchers have improved the academic performance of students from other ethnic groups. In my own research, they had no impact, positive or negative, on the test scores of either whites in Dayton or Hispanics in New York City.)

These findings about the especially positive effects of private schools on African-American students are hardly isolated. One review of the literature, conducted by the Princeton economist Cecilia Rouse, concludes that even though (once again) it is difficult to discern positive benefits for white students, “Catholic schools generate higher test scores for African-Americans.” Another, done by Jeffrey Grogger and Derek Neal, economists from the University of Wisconsin and the University of Chicago, finds little in the way of detectable gains for whites but concludes that “urban minorities in Catholic schools fare much better than similar students in public schools.”

No less important, in light of concerns about the effect of vouchers on students “left behind,” is that school choice also seems to improve the performance of students who remain in the public schools. The best data from Milwaukee show strong advances in test scores since the voucher program was put into place there ten years ago, especially at public schools in those low-income neighborhoods where the voucher option was available. As observers in Milwaukee have noted, it was only in the wake of the voucher program’s expansion that the public-school system there began to adopt a series of apparently successful reforms.

We do not know precisely what accounts for the gains that black students have made by switching to private schools. The answer is certainly not money, since the private schools they attend are usually low-budget, no-frills operations. The most striking difference, according to my own research, lies in the general educational environment: the parents of these students have reported being much more satisfied with everything from the curriculum, homework, and teacher quality to how the schools communicate with the parents themselves. The classes tend to be smaller, they say, and there is less fighting, cheating, racial conflict, or destruction of property.



That vouchers can produce such results has been known for some time. The question now is whether the ruling in Zelman will have any impact on what the public and politicians think about the issue. If nothing else, the Court’s authoritative pronouncement on the constitutionality of vouchers has already conferred new legitimacy on them. Newspaper editors and talk-show hosts have been forced to give the idea more respect, and political opponents cannot dismiss it so easily.

Still, the key to change lies within the black community, and especially with parents, who increasingly know that private schools provide a better education for their children. A 1998 poll by Public Agenda, a nonpartisan research group, found that 72 percent of African-American parents supported vouchers, as opposed to just 59 percent of white parents. A poll conducted two years later by the Joint Center for Political and Economic Studies had similar results, with just under half of the overall adult population supporting vouchers but 57 percent of African-American adults favoring the idea. Perhaps more to the point, blacks constituted nearly half of all the applicants for the 40,000 privately funded vouchers offered nationwide by the Children’s Scholarship Fund in 1999, even though they comprised only about a quarter of the eligible population.

Even in the face of such numbers, it is too much to expect that men like Jesse Jackson and Al Sharp-ton will reconsider their virulent opposition to vouchers; their political tendencies are too well defined. But pressure to support school vouchers is building among black parents, and black leaders will have to act. Howard Fuller, the former superintendent of Milwaukee’s public-school system, has formed the Black Alliance for Educational Options, a pro-voucher group that has mounted an effective public-relations campaign and is making waves in civil-rights circles. And young politicians like Cory Booker in Newark have begun to challenge their old-line, machine-style elders, using vouchers as a key dividing point. Responding to these currents—and to the decision in Zelman—the city council of Camden, composed entirely of black and Hispanic Democrats, passed a unanimous resolution in July urging the state of New Jersey to establish a voucher program for the city’s dysfunctional public schools. Such examples are sure to multiply.

Not even the Supreme Court, it should be recognized, can make educational change come quickly in America. Though Brown was handed down in 1954, it took more than a decade before major civil-rights legislation was enacted; Southern schools were not substantially desegregated until the 1970’s. Anyone writing about Brown ten years after its passage might have concluded that the decision was almost meaningless.

The same may be said about Zelman. on its tenth anniversary. Perhaps the safest prediction is that, in four or five decades, American education will have been altered dramatically, in ways we cannot anticipate, by the parental demand for greater choice—a demand codified in Zelman. Many battles will be fought and lost along the way, to be sure, but the victories will accumulate, because choice, once won, is seldom conceded.



1 New York City, Washington, D.C., and numerous other cities have well-developed private voucher programs designed to help low-income families; these currently serve over 50,000 students.


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