The New Republic

The Supreme Court is about to decide the constitutionality of school
choice; but it is doing so with a peculiar blindness to the politics
of school choice. In arguments on February 20, a majority of
justices seemed to agree that Cleveland's voucher program would be
constitutional if low-income parents had a meaningful range of
schools--religious and secular, public and private-- from which to
choose. But the more skeptical justices worried that because nearby
suburban public schools have chosen not to accept transfer students
from the inner city, this meaningful range of choices does not
exist. In fact, 96 percent of students in Cleveland's voucher
program in 1999 were enrolled in religious schools.There is something perverse about this objection. After all, there's
a reason the Cleveland voucher program doesn't require the suburbs
to participate: It's politically impossible. Ever since Brown v.
Board of Education, efforts by the courts or legislatures to deal
with racial segregation and funding disparities by coercing
suburban schools into accepting inner-city students have sparked
fierce suburban backlashes and ended in failure. Given these
political realities, Cleveland's voucher system is far better than
the alternatives. To strike it down because it fails to guarantee a
range of choice that suburban resistance has made impossible would
represent the kind of judicial activism the Court has already
abandoned in school desegregation and school financing cases. A
pragmatic court, on the other hand, would recognize that limited
voucher programs offer the only realistic hope for reconciling the
politically unshakable principle of local autonomy with even a
modicum of racial diversity and educational equality.

In Cleveland, and throughout the country, today's battles over
school vouchers are inextricably connected to yesterday's battles
over racial desegregation and equality of educational resources. In
1995, as part of a lawsuit filed 20 years earlier to desegregate
Cleveland's public schools, a federal court put the school district
under state control because it was failing to meet the state's
minimal performance standards. In response, the Ohio legislature in
1997 adopted a voucher program that pays up to $2,250 per year for
low-income students from kindergarten through eighth grade to
choose from a range of participating public and private schools.
The legislature invited public schools in the Cleveland suburbs to
participate and to receive yearly payments for accepting transfer
students from the inner city. All the suburban schools declined the
invitation.

This lack of enthusiasm was hardly a surprise. In a forthcoming
article in the Yale Law Journal, James E. Ryan of the University of
Virginia and Michael Heise of Case Western Reserve University argue
that the resistance of suburban public schools has defined the
politics of school choice for the last 50 years. "Suburbanites, by
and large, are not wild about school choice, either public or
private," they argue, because suburban parents generally like the
schools their children attend and want to protect their physical
and financial exclusivity against the threat of school choice. When
courts have tried to coerce suburban parents into surrendering
control over their schools, Ryan and Heise argue, suburban parents
have fought back and won. After a few years of strenuous local
resistance to court-ordered busing, for instance, the Supreme Court
gave up: In 1974 it found that suburban schools couldn't be forced
to alleviate racial segregation in the inner city. When inner-city
parents tried a different strategy and argued that the inequalities
of school financing between the suburbs and the inner cities
violated the Constitution, the Supreme Court again rejected the
claim, holding that transferring property taxes from the suburbs to
the city undermined local autonomy.

Voucher plans were adopted largely as a last resort, an effort to
guarantee a semblance of school choice for low-income minority
students in failing inner- city schools. (And in this regard,
although usually cast as a conservative idea, they have a liberal
pedigree.) But when voucher plans threatened suburban autonomy, the
suburbs fought back once more. According to Ryan and Heise,
statewide voucher initiatives in California and elsewhere were
defeated not primarily by teachers' unions but by Republican
suburbanites. In Ohio, Wisconsin, and Florida--the three states
that have adopted publicly funded voucher plans--liberal African
American legislators won white Republican support in part because
they restricted their efforts to inner-city families in failing
schools without threatening the physical or financial independence
of suburban schools. More ambitious plans would have represented
political suicide.

In striking down Cleveland's voucher plan as a violation of the
First Amendment's prohibition on establishment of religion, the
federal appeals court refused to acknowledge this political
reality. Instead it focused on the fact that, in 1999, 96 percent
of students participating in the voucher program were enrolled in
sectarian schools. But, as a legal matter, the precise mix of
religious and nonreligious schools shouldn't matter: The Supreme
Court has held that the state can offer money to religious and
secular institutions on equal terms as long as the private choices
of individual recipients, rather than public incentives offered by
the state, determine the ultimate destination of the funds.

If only one or two secular schools participated in the voucher
program, one could argue about whether Cleveland parents enjoyed a
meaningful choice. But in Cleveland, as in Milwaukee, the mix of
schools--public and private, secular and religious--can change
quickly in response to financial incentives offered by the state.
In Milwaukee the number of secular private schools participating in
the voucher program more than tripled from 7 in 1990 to 23 in 1998,
serving 30 percent of the choice students. Even if the suburbs
remain intransigent, as they did in Milwaukee, there's no reason
not to expect a similar expansion of participation by secular
private schools in Cleveland if vouchers are allowed to take root.
Indeed, when Cleveland's voucher program began, it included two
secular private schools that educated 15 percent of all the voucher
students. But when the state offered roughly twice as much to
students in charter schools than to students in the voucher
programs, these private schools reorganized themselves as public
charter schools.

It's arguable, therefore, that the range of choices among secular
schools in Cleveland is already much wider than the federal appeals
court acknowledged in its ruling. During last month's oral
arguments at the Supreme Court, the central question was whether
the appeals court had made a mistake by refusing to include these
public charter schools--also known as community schools--in the
range of choices available to Cleveland parents. The court had done
this because the charter schools receive money directly from the
state rather than from vouchers given to parents. But, as Justice
Sandra Day O'Connor suggested, it seems odd not to count the
charter and magnet schools among the range of choices in Cleveland,
since they--like the voucher-eligible schools--will receive more or
less state funding based on the number of students they attract.
"Don't we have to look at the full range of choices, community
schools and magnet schools," asked O'Connor impatiently. "If you
want to look at what parents' choices are, don't you have to look
at the whole program?" As it turns out, when community schools and
magnet schools are counted, more than 37 percent of Cleveland
parents who used direct or indirect state aid to opt out of public
schools in 1999 chose nonreligious schools.

If Ohio were utopia, the state would have done more to increase the
range of school choice. It could have set the voucher limits higher
so they were easier to use at more expensive, secular private
schools. Ohio could have followed Milwaukee's example and allowed
voucher students who attend parochial schools to opt out of
religious activities. Or Ohio could have required suburban schools
to participate in the voucher program, abandoning the principle of
local autonomy. But efforts to increase the voucher amount have
stalled in the Ohio legislature because of concerns about expense;
the opt-out option seems to have been overlooked; and a proposal to
require suburban schools to participate in the voucher program
never would have passed. Ohio is not utopia, and the Supreme Court
shouldn't impose choice requirements so arduous that no state can
actually meet them.

Nor should it impose the even higher standards that Justice Stephen
Breyer suggested. He wondered whether the religious and public
schools were sufficiently equal in quality to give parents a
meaningful choice. Breyer suggested that if the Catholic private
schools were better than the secular alternatives, he would feel
pressure to send his children there, even if he weren't a Catholic.
"The irony is that the better parochial school is, in a sense the
less freedom of choice," said Breyer. "If it was my children, I
would say, `I want the best education. Do I want them to learn
religion? Frankly not; it's not my religion.'" This objection is
hard to fathom: If Catholic schools are indeed the best
alternative, non-Catholic parents would feel the same pressure to
choose them, whether or not they were part of a voucher program,
and whether or not (like Breyer) they could afford more expensive
alternatives.

Breyer is the Court's leading pragmatist, but it would be distinctly
unpragmatic to strike down the voucher program because Cleveland, at
this moment, fails to offer religious and nonreligious schools of
precisely equal quality. Real educational equality has proved
impossible to achieve, which is why the Court stopped demanding it
in desegregation and school financing cases. It would be even less
pragmatic to strike down the Cleveland program unless the suburbs
participate. The refusal of the suburbs to participate in
desegregation efforts is what led to the voucher program in the
first place, and, if the program succeeds, voucher advocates hope
the suburban schools might eventually change their minds about
participating, as they did under the METCO plan in Boston. (METCO
began as a small, voluntary desegregation plan in the 1960s; now,
close to 40 suburbs accept more than 3,000 inner-city students per
year who are bussed in to attend their schools.) Finally, Breyer
has staked his jurisprudence on the importance of deferring to
legislatures and allowing them to experiment with a variety of
solutions to complicated social problems. To strike down fledgling
voucher programs in the name of an abstract and unrealistic ideal
of equality would be the antithesis of judicial modesty.

"It is one of the happy incidents of the federal system that a
single courageous state may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without
risk to the rest of the country," wrote Breyer's hero, Justice
Louis Brandeis. There is little risk that upholding the modest
voucher programs in Cleveland, Wisconsin, and Florida will threaten
the constitutional principle of religious neutrality. And there's a
real chance that, as voucher programs develop for inner-city
students, they will lead to more school choice and more racial and
religious diversity at the same time. Fifty years after Brown v.
Board of Education, that's a combination no other legal or
political strategy has managed to achieve.

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