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The Legal Case -- and the Fairness Case -- for Vouchers Clint Bolick, Cofounder and Director of Litigation, Institute for Justice Center of the American Experiment Luncheon Forum Cosponsored by the Federalist Society Radisson Plaza Hotel Minneapolis, Minnesota February 20, 1996
In the same way that Gov. Rudy Perpich and Minnesota led the nation in achieving public school choice in the 1980s, Gov. Tommy Thompson and Wisconsin have led the country in expanding choice to include private and religious schools in the 1990s. More specifically, Governor Thompson, a conservative, and Polly Williams, a politically liberal, African-American state legislator, are correctly recognized as principally responsible for making real educational options possible for low-income children in Milwaukee. But, obviously, they labored not alone. Or to update matters, they continue to labor not alone in assuring that opponents of educational freedom don't prevail judicially after failing to do so legislatively. One of the key players in Milwaukee's ongoing court battles (and Cleveland's, too) is Clint Bolick, vice president and director of litigation for the Institute for Justice, in Washington, DC. The oral essay which follows is based on his remarks at an American Experiment Luncheon Forum, in February, in which I asked him to address both the inherent fairness and likely constitutionality of a properly designed voucher program. Here is an example of the on-target things he had to say during that symposium, which was generously cosponsored by the Federalist Society: Our educational system, especially for the children who need the most help, is in a very deep and worsening crisis. We have not been able to control crime in the inner city. We have not been able to stem the tide of welfare dependency or unemployment. It seems to me that the one thing we are in a position to deliver is a decent educational opportunity. This is the one thing that can help people escape the cycle of poverty and despair. And the one thing about school choice is that it offers immediate opportunities to children who are now in bad schools to go to good schools -- today. Arguments for universal school choice can take many forms, including a recognition of the importance of competition among schools and school systems, as well as an appreciation of the fundamental virtue of freedom itself. But my favorite rationale for educational choice is the one cited by Mr. Bolick in the paragraph above: It can help poor kids in particular. Far too many children are growing up in great turmoil, with many of them lacking what might be described as spiritual nourishment, among other kinds. Given that public schools either cannot or should not provide such spiritual nurturing, but that parochial schools can and do, doesn't it make sense -- for both the sake of the kids as well as society more broadly -- to make certain that as many children as possible have a viable chance for that kind of normatively enriched education? As someone who is exclusively the product of public schooling (save for drivers ed), I say yes, emphatically. Talking about governors as I did above, I am very pleased to note that Minnesota's Arne H. Carlson has come to be, along with Governor Thompson, one of the most passionately committed state executives in the nation in the service of educational choice and freedom. Thank you, governor. American Experiment has pursued questions of school choice from our very start in 1990 and will continue to do so. Mr. Bolick's Forum, for instance, was the second in a two-part series held earlier this year, the first installment of which was a debate titled, "Vouchers: Do They Properly Respect Americans' Religious Devotion to Common Schooling?" (The answer is yes, by the way.) Among our essays on the subject has been Jon S. Lerner's indestructible 1993 paper, "The Constitutional Case for Universal School Choice in Minnesota." Returning to Mr. Bolick, in addition to serving as vice president and director of litigation for the Institute for Justice, he is also a cofounder of that important organization, whose aim is to protect individual liberty and challenge the regulatory welfare state. It's more informative, though, to say this about him: He is a major leader in an increasingly vital wing of American conservatism (of which American Experiment is a part) that is intimately interested in questions of race and equity -- and which understands that many policies of the last, more liberal generation aimed at reducing unfairness have only made matters worse. American Experiment members receive free copies of almost all Center publications, including "The Legal Case -- and the Fairness Case -- for Vouchers." Additional copies of this essay are $4 for members and $5 for nonmembers. Bulk discounts are available for schools, civic groups and other organizations. Please note our phone and address on the previous page for membership and other information. Thanks very much and, as is always the case, I welcome your comments. Mitchell B. Pearlstein
This school choice phenomenon that Minnesotans have been debating is really the fruit of a little revolution that began not very far from here in 1990, in Milwaukee, when a very courageous state legislator named Polly Williams joined Republican Governor Tommy Thompson to put forward the nation's first school choice program. It truly was a little revolution in terms of the scope of the program. It applied to only 1 percent of the children in the Milwaukee public schools; it applied to only low-income children; it only allowed them to go to nonsectarian schools; and it only allowed students to use about 60 percent of the money spent on financing their public education, or about $2,500. That's certainly a very modest experiment considering all the time and effort that had been spent debating the issue. Yet even though it was a little revolution, you would have thought an atomic bomb had been detonated in the city of Milwaukee in terms of the frenzied, hysterical reaction of the education establishment. They tried many things to prevent this program from ever coming forward, including issuing a blizzard of regulations designed to sentence the program to death by bureaucratic strangulation. They also filed a lawsuit, and I had the honor of defending the school choice program in court. The forces arrayed against school choice are powerful, but Polly Williams taught me a lot about how to win a David versus Goliath battle. She discovered that in Milwaukee, like in most large cities around the country, a large percentage -- in Milwaukee's case, about 40 percent -- of the public school teachers send their own children to private schools. These are the most informed consumers of public education, and 40 percent of them send their children to private schools, yet they file a lawsuit saying they don't want other kids to go to private schools. This is very interesting. So Polly Williams announced that she was going to introduce legislation that would require public school teachers, as a condition of employment, to send their children to public schools. The point was very well made. Ms. Williams received death threats on her answering machine. It underscored the rampant hypocrisy among opponents of this issue. What is it that terrifies these people? And I do not speak here of individual teachers, but rather of the organization that purports to represent them. What is it that is so revolutionary about this idea, even on such a small scale? I think the answer to that question is twofold. With that little program, two things happened that had never happened before in the history of American public education. First, the power over basic educational decisions was transferred from bureaucrats to parents. Power. That's what this issue is really all about. Who is going to have power over education: the government or parents? The second factor making this so revolutionary was that for the first time in history, schools were forced to compete for low-income children and the money that they command. Low-income children have no school choice in the United States. They can't afford private schools, so they're forced to accept whatever their public school district has to offer. They are captive consumers, and they don't have very much clout. But suddenly these little kids were given their share of education dollars and given the opportunity, if they were not satisfied with their school district, to walk out the door and take their money with them. And, boy, did that have an impact on people who did not previously worry about these children's interests. The Milwaukee public schools immediately started sending surveyors to homes to ask families what could be done to keep them happy and to keep them in the public schools. The entire issue has sparked a reform effort in the Milwaukee public schools such as never has been seen previously in that city. So I think that for the children who have left, it has been a good thing. And for the children who have not left, it also promises to be a very good thing.
Our educational system, especially for the children who need the most help, is in a very serious, deep and worsening crisis. We have not been able to control crime in the inner city. We have not been able to stem the tide of welfare dependency or unemployment. It seems to me that the one thing we are in a position to deliver is a decent educational opportunity. That is the one thing that can help people escape the cycle of poverty and despair. And the one thing about school choice is that it offers immediate opportunities to children who are now in bad schools to go to good schools -- today. That is what parents want. They don't want reform proposals that may or may not work five years from now, 10 years from now, billions of dollars from now. What they want is the same thing that every parent in this room wants: the opportunity to send their children to a good school, preferably in their own neighborhood -- today. That is what school choice allows to happen. There are many abysmal statistics I could draw upon to illustrate my points, but I'll mention two from Chicago, which has one of the worst public school systems in the United States. There are 400,000 students in the Chicago public schools. Half of those children drop out before they graduate. Of the 50 percent who go on to graduate in Chicago, only half take college admission tests. So you already have a 75-percent attrition rate before you even get the self-selected 25 percent who take the tests. Notwithstanding that huge attrition rate, out of 64 public high schools in Chicago, 38 rank in the bottom 1 percent nationwide on college admission test scores. Thirty-eight out of 64. Only two rank at or above the national average. We need an option. We need a catalyst for change, and that catalyst is school choice. Let me mention one other thing from Chicago that illustrates why we are facing so many difficulties in our public schools. The Chicago public schools have 400,000 students and an administrative bureaucracy of 3,200 people. The Chicago Catholic schools have 100,000 students and an administrative bureaucracy of 40. The public schools, in other words, have four times as many students but nearly 100 times as many administrators. Since 1980, the number of public school teachers around the country has declined by 2 percent. The number of administrators has grown by 13 percent. In the inner cities, barely 50 cents out of every educational dollar reaches the classroom. That needs to change. But while it changes, we need to have school choice. And to make it change, we need to have school choice. One objection to school choice is the notion of creaming, or the prospect of top students choosing to leave public schools, relegating them to dumping grounds. Actually, the exact opposite has occurred. The Wisconsin state auditor found that the Milwaukee program actually enrolls children whose grades are below the Milwaukee public school average and who are poorer than the average Milwaukee school student. When you think about it, that makes sense. If your kids are doing well in public school, there is no need to move them. But if your child is having a discipline problem or an academic problem, that is when you want to look for alternatives. It's exactly these children who are going to private schools under the choice program.
In Milwaukee, test scores have been flat so far, and it's not clear where the test scores are going to go. But there are three indicators of success that I think are absolutely staggering. Number One: Milwaukee public schools have about a 50-percent graduation rate. For kids from families on public assistance, the graduation rate is 15 percent. The graduation rate from the private schools that are participating in the school choice program is in excess of 90 percent. Interestingly, I have learned through a study not related to the choice program that more than 40 percent of the kids who do graduate from Milwaukee public schools have spent some time in private schools. So it appears that even if the kids move back and forth, there is some influence in terms of determination to get a good education. The second indicator is parental involvement. In public schools, it is difficult and frustrating for parents to get involved in their kids' education, and so they often don't do it. In private schools, parental participation is generally required in some form, whether it's student-teacher meetings or fund raising or some other form of participation. It's a requirement that parents be involved in their children's education. Third and finally, and this is breathtaking, parental satisfaction is off the charts. I would venture that there is no other large city in the United States where low-income parents are as happy with the quality of education their children are receiving as are the parents in the Milwaukee choice program. The proof of the success of the school choice program is shown by what happened in Wisconsin last year. I noted how small the program was when it started, but as a result of the bipartisan effort led by Polly Williams, which included Governor Thompson, Democratic Milwaukee Mayor John Norquist, the business community, and 90 percent of Milwaukee's African-American community, the Wisconsin Legislature voted to expand the program dramatically. Lawmakers increased by 10 times the number of students who could participate and decided to include religious schools among the range of options, increasing the number of participating schools from about 15 to about 100. The American Civil Liberties Union went to court. And again the teachers' union went to court, and they convinced the state Supreme Court to enjoin the expansion of the program pending the outcome of the litigation. Meanwhile, Ohio has become the second state to have a pilot program, and we may even get one in the District of Columbia. I'm also heartened by the efforts I see here in Minnesota, and although there have been some legislative setbacks, I think that we have the beginnings here of a very successful movement for school choice.
I want to briefly describe the legal issues that are at stake; they vary, of course, from state to state. The big issue, the one that we have been waiting for since this whole idea was a glint in Milton Friedman's eye many years ago, is that of religious establishment. The ACLU contends that the moment a dollar passes the threshold of a religious school, no matter who is directing that dollar, if it is public money, it is unconstitutional. Well, I don't think that is going to prove to be the case. I am very confident that when one of these cases reaches the United States Supreme Court the constitutional cloud will be removed from school choice. First and foremost, the reason I'm optimistic is the language of the Constitution itself. People talk about separation of church and state. The First Amendment says Congress shall make no law respecting an establishment of religion. Opponents say school choice does just that -- establishes religion. But what this is really all about is assisting parents in choosing the school that is best for their son or daughter, whether it is public or religious. In the last decade and some, the U.S. Supreme Court has been moving in precisely that common sense direction. There have been four cases since 1985 in which the issue of aid to students in some form or another has been before the high court. The first one was from right here in Minnesota with the tax deduction program that allows parents to deduct a share of educational expenses from their state income tax. That went before the U.S. Supreme Court and was alleged to be an establishment of religion. A couple of years later when a blind student used his federal student aid money at a religious college in Washington state to study to become a minister: That, too, was attacked as an establishment of religion. A couple of years after that, a deaf child in Arizona used his publicly funded interpreter at a Catholic high school. That also was attacked. And most recently, at the University of Virginia, funding from student fees for a religious publication was attacked as an establishment of religion. In all four of these cases, the Supreme Court upheld the program that was challenged. The court has said we must look at two factors to determine whether these programs are constitutional or not. The first is: Who decides whether the money is to be used for enrollment in a religious school? The state? If the state decides and sends money directly to religious schools, that's indeed a problem. That's a subsidy which crosses the line. But if it's a parent or student who decides where the money will be used, that's not an establishment of religion. That is not a subsidy of religion. That is not a benefit of religion. That is aid to a parent or to a child, and that does not violate the First Amendment. The second issue is whether the program creates a financial incentive to choose religious schools over other schools. The most recent decision, the one involving a student publication at the University of Virginia, has given us special optimism. You might immediately say, "Wait a minute, that's money going directly from the state to a religious publication. They are actually funding a religious publication." But for the first time, a majority of the Supreme Court -- five members -- said that's OK as long as funding is provided for nonreligious publications, as well. The court embraced the neutrality principle. The extra nice thing about the decision, I might add, is that even the four dissenting justices seem to suggest that they would vote to uphold a well-constructed program of school choice. I believe that the opposition really does not want these cases to go to the U.S. Supreme Court. They want them to be decided on state constitutional grounds so that we don't get a case up to the Supreme Court. But we are going to fight very hard to make sure this issue is resolved. And the prognosis also is good in the state courts. For instance, the Minnesota Supreme Court and other Minnesota courts have upheld the constitutionality of a program that allows high school juniors and seniors to attend Minnesota colleges, including religious colleges, for credit. The courts upheld the program precisely because the aid is indirect, and not a direct subsidy to the religious school. So, the prognosis is good. Will we have setbacks along the way? I hope not, but the answer to that is almost inevitably yes. But I do believe that the legal issue does not present a viable obstacle to a public policy experiment that has so much going for it. That's because this is not about the establishment of religion. It is about fulfilling a guarantee that our nation has made to every school child, and that is the guarantee of equal educational opportunity. I believe that school choice takes us a major step toward fulfilling the promise of Brown vs. Board of Education in 1954. That is the promise of giving kids who need a good education the most a real shot at attaining it.
I'm going to conclude with a brief anecdote. The first time I argued the school choice case before the Wisconsin Supreme Court in 1991, we had a couple of buses with parents and children coming up to see the argument. We wanted to be sure the children would be able to see what was going on. But on the way to the courtroom, the bus broke down and the children were delayed in arriving. By the time the arguments started, the courtroom was filled with observers and there wasn't a single seat in the courtroom for the kids. When I got up to begin my argument, I looked to see if they had gotten there. All I saw was this little row of noses pressed against the glass doors. The kids had gotten there and weren't able to get inside, but they were watching at the doors to see what was going to happen in the courtroom that would affect their lives and their futures. Well, as a result of that court's decision to uphold school choice in Wisconsin, those little children, who were always on the outside, are on the inside now. And with the help and the passion and the support of the people in this room, lots of other kids are going to be joining them.
John Povejsil: I know you're not an economist, but would you address the potential problem of third-party payments on the costs of private education? Bolick: That is a very good question. Will school choice inflate the cost of private education? There very well could be an inflationary effect on private school tuition if you make the voucher a high dollar amount. The Milwaukee program attempts to deal with that by capping the amount of the voucher at the actual operating costs of the school. Of course, operating costs can increase. But most of the vouchers that I have seen are fairly modest programs and are set at or below that median private school tuition. So, I don't think there is going to be that market incentive to increase prices. Some voucher programs require families to make up some of the difference, too. They are not full payment. Milwaukee is a full-payment voucher. But others feel that the parent should make a financial commitment. That's another mechanism one could explore to deal with that problem. Greg Pulles: If inner-city public schools are not doing a good job, won't a massive voucher program lead to the closing of these ineffective schools? Isn't that really why we have all this opposition? Bolick: I think there is a prospect of that, depending upon how many kids go to private schools. In Milwaukee, a lot of people have expressed the very legitimate concern that this is going to increase the pressure to regulate private schools. What I have seen in Milwaukee, conversely, is that there is pressure to deregulate the public schools, which is exactly what I think should happen. No public schools in Milwaukee have yet closed [due to low enrollment] because not many kids have yet been allowed to transfer to private schools. But schools have been closed because they were deficient. Superintendent Howard Fuller said he needed to be able to respond to this new competitive reality, and he wanted the following powers: The power to open charter schools. The power to fire incompetent teachers. And the power to close failing public schools. He was denied all those powers and so he quit. Now he is a nationwide champion of school choice. But after he left, the school board consented and gave the new superintendent the power to close schools that are failing. Ten schools have been shut down, not because of less enrollment, but because they were failing. I think that's a wonderful development. Thomas Ross: What types of reform are being tried and which ones are working in Milwaukee? Bolick: I refer to the three D's of public school reform: decentralization, deregulation, and depoliticization. I see that beginning to happen, and I see school choice as the catalyst that will force it to happen. In Puerto Rico, the commonwealth did a couple of things simultaneously. It eliminated tenure. It dismissed a whole bunch of bureaucrats and sent them back to teaching jobs rather than bureaucratic jobs. It created a voucher program for low-income children, which unfortunately was struck down under the state constitution. It created open enrollment, which, of course, you already have here. And it also took 100 of the worst schools on the island and completely deregulated them and put the communities in charge of everything, including hiring, firing, budget, and curriculum. They called them community schools. One of the interesting things that came out of the first year, after all of the reforms were operational, was that more kids left private schools for public schools than left public schools for private schools. That's the neat thing. There's choice. Phil Moosbrugger: Private schools succeed because they can do as they wish without a lot of government interference. Won't the Legislature find it irresistible to begin to attach conditions and strings and impose requirements and so forth once the private schools are financially dependent and really can't say "no" anymore to the money that's coming in? It will be irresistible for the Legislature to start telling them what to do. Bolick: I think that's a really legitimate fear, and, in fact, it was a fear that became a reality in Milwaukee. I mentioned the regulations that the superintendent attempted to impose on the program. We had to go to court to get them lifted. The court reasoned that the whole idea was not to create a new species of government schools, but rather to allow children to avail themselves of nongovernment schools. Over-regulation is a concern that ideally is addressed in the legislation itself. Most private schools are comfortable with accountability types of regulations, and they should be able to abide by those. So I think the way to deal with that is to spell out the regulations up front. Cap them if possible. If you can't cap them, then you can go to court like we did. And of course the schools can decide if they want to live by the rules. There are 122 private schools in Milwaukee, and 102 schools decided they would participate in the program under the regulations that were spelled out. That is a decision every school has to make. But I think your concern is a very, very viable one. Yet I'll say again, the impetus now is in the other direction: in the direction of unshackling government schools, which I think is a good thing. Ted Kolderie: If you are serious about improving educational opportunities rapidly for kids, then you have to deal with the question of how to get enough schools. Either in terms of Milwaukee or in terms of your own preferred arrangement, under what rules would new schools be created? Who could do it? Through what process? And, in the process, does the door open to commercial schools? Bolick: Taking the last part first, I hope the answer is yes. I would like to see more commercial enterprises getting into the business of education. I don't know whether you would agree with that or not. In Milwaukee, initially, there was an obstacle to creating new schools, and that was the requirement that 51 percent of eligible students had to be tuition-paying students. Essentially, that meant no new voucher schools were opening in the first several years. That requirement was reduced to 35 percent and then eliminated. So there is now no limit on school formation in Milwaukee. The Legislature, though, now feels that it may have over-corrected, because there have been a couple of schools that set up and immediately closed down. Washington, D.C.'s proposal calls for a probationary period. Before the school can be a full-fledged voucher-receiving school, the school has to prove itself over time. So it can be designed any way you want. My general bias is in favor of allowing the market to respond freely. Church basements that serve as church schools on Sunday and sit empty during the school week seem to me very fertile territory to open up lots of schools in the inner cities. Mark Manderscheid: Can religious schools continue to maintain a parish preference, particularly with regard to some of the Catholic schools? Some schools are so popular with the members of their church that if they were allowed to continue with a parish preference -- that is, giving priority to members of that church for admission -- then no one who was not the child of members of that church would be able to enroll. I'm concerned that in that case there would be a religious requirement for admission to that school. Bolick: It is a real difficult balance. In Milwaukee, the schools decide how many seats they are going to set aside for school-choice students, then they must accept students on a random selection basis from the school-choice students. So to the extent that they are accepting choice students, they would not be able to indulge a parish preference. That, however, doesn't appear to be a problem for Catholic schools in Milwaukee. Either they limit the number of school-choice slots that they make available or they accept anyone. So even though they would love to have kids from their parish, as a practical matter they educate anyone who wants to be educated there. That increasingly is the case for inner-city Catholic schools. In other choice proposals, admissions are at the behest of the school. The school may admit school-choice students just like they admit any other kind of student. Federal civil rights laws generally allow religious discrimination in admissions. I don't think that would be a problem constitutionally so long as you are giving the money to the parent and the parent takes his or her chances in the marketplace. Mitch Pearlstein: What about kicking kids out? One of the arguments against vouchers is that private schools can kick out bad kids and public schools can't, therefore, vouchers are a bad idea. Could you speak to that? Bolick: Private schools do have the ability to throw out recalcitrant students. The fact that private schools have the power to establish disciplinary rules and to enforce those rules is one of the major differences between inner-city public schools and inner-city private schools. Kids who have had discipline problems in public schools often are not discipline problems when they get to private schools precisely because of that. Nationwide, expulsion rates are actually higher in public schools than they are in private schools. I think it's because of the very clear rules, and the demand that those rules be followed. Public schools should have greater latitude with discipline and expulsions. That's a reform they need, rather than shackling private schools in that regard. Richard C. Johnson: I think there is something to be said for treating the symptoms of bad public education, and I think the voucher system does that. But isn't the breakdown of the public education system of this country caused by the breakdown of the family? Bolick: That's a really good question, and one that I flat out don't know the answer to. I do know that school choice helps address the question in that private schools require parental participation. These schools tend to be real community structures. It seems to me that making parents sovereign and making parents responsible for education decisions would be a way to help retrieve a sense of community. One aspect of the question you asked came up in one of my recent debates. The woman I was debating said it's not the fault of the schools, it's the fault of the dysfunctional families. It's the one argument that makes me more angry than any other. The fact is that these very same children who have so many things going against them, perhaps in their families or in their communities, come into private schools and perform well. The private schools give these kids high expectations, high demands and affection, and they perform. As for family integrity, I think making the parent and the family the primary decision maker with regard to education and values -- as school choice does -- is a real step in the right direction. James Barrios: You mentioned that opponents are challenging the voucher system on grounds that it would result in the establishment of religion. Do you think you could make the argument that under the same clause that says Congress should make no law restricting a citizen's right to practice religion, that government, by taking public funds and then not allowing people to intermingle religion with their education that government does, in fact, unconstitutionally restrict a person's right to practice religion? Bolick: Yes. That is an argument that has been raised, and I think it's gaining currency. In the Virginia case, the exclusion of a religious publication on the grounds that it was religious was struck down by the U.S. Supreme Court on freedom of speech grounds. I think a very similar argument could be made on free exercise of religion grounds. William Hempel: Suppose the grounds for suspension or expulsion from a parochial school is not discipline but refusal to attend chapel or to salute the flag or to observe prayer in the classroom? What then? Bolick: That is basically a policy issue that goes into designing a choice plan. If that were to happen in Cleveland, the kid's out. Milwaukee requires religious schools to provide an "opt out" if a child wants it. That was the biggest stumbling block for some of the schools in terms of whether or not to participate. The majority decided to participate, because it turns out that most of them allow an opt out anyway, but very few students take advantage of it. We are not transforming private schools into public schools, so the constitutional rules that preclude certain requirements in the public sector should not preclude them in the private sector. Karen Rusthoven: I think that one of the things that makes it so difficult for inner-city families to be actively involved in the education of their children is the way public education is structured. I have just opened a charter school in St. Paul, and we designed the school specifically for inner-city families. It's not difficult to do that. We kept it small. We designed it as a K-8 so that families could have all their kids in the same school for a long time. We do home visits. We recognize the fact that all parents care about their kids and want to be involved in their education. But when you have issues of English as a second language, lack of transportation, lack of child care, unemployment -- your children are assigned to three or four different public schools -- it can be very difficult to be involved in their education. So, I think it is not impossible to structure education in a family-friendly, parent-friendly fashion. That is why I think choice is so important, because most of these schools are small, and they can know their families. You have to know your families when your families are in crisis. Bolick: Yes. That's a wonderful comment. I agree with it. I commend you for setting up a charter school. That is wonderful. And, you're right. Autonomy. Responsiveness. Smallness. Community location. All of these are really good features. |